Discrimination in public sector employment is difficult to prove; however, cases before the Protector of Human Rights and Freedoms indicate that discrimination is most prevalent in the area of employment and labor relations, with nationality and political affiliation being the most common grounds.
On the issue of discrimination in public sector employment, the many challenges it poses, and the possibilities of proving it, Institute Alternative (IA) discusses in the fifth episode of its podcast Re(Form) with Siniša Bjeković, the Protector of Human Rights and Freedoms.
“Statistics are relentless, and when it comes to discrimination, it is most evident in the field of work and employment,” emphasized Bjeković, noting that this phenomenon is also observed in other Western Balkan countries. He specified that almost 35 percent of discrimination cases concern this area, and that ethnicity and political affiliation are most often cited as the grounds for discrimination.
Speaking of illustrative examples of discrimination in public sector employment, the Ombudsman pointed out cases of so-called political retaliation, where members of the previous ruling structures are put at a disadvantage—a pattern equally perceived in the past by those who had not been in power. He added that this type of discrimination is particularly difficult to prove, given the wide range of different functions and jobs within the administration, as well as the challenges of finding a proper “comparator.” He also referred to a case of discrimination under the judiciary, specifically in Bijelo Polje, where discrimination in the hiring of trainees on ethnic grounds was successfully established.
“I must say that protection against discrimination is a skill, just as much as it is a legal ability to pursue it,” Bjeković stated, concluding that people often perceive any injustice in society as discrimination, which further strengthens the general belief that one cannot be protected from discrimination.
Decisions without justification
Asked why administrative bodies continue to issue important decisions affecting citizens’ lives without proper reasoning, Bjeković highlighted the importance of the principle of good governance, namely the right to a well-reasoned decision.
“Without a reasoned decision, you essentially do not know on what grounds the decision is based, and you have no way to determine or choose an appropriate legal remedy,” said Bjeković.
With regard to public sector hiring procedures, he pointed out that legislation has been problematic in part, as it only required that candidates be notified, without giving specific reasons as to why someone was hired.
“This has also influenced our persistent habit that if someone has gone through scoring, met the formal legal requirements, and applied the criteria—there is no need to explain further why the decision-maker chose as they did. This is unacceptable for two reasons: first, because EU law (the right to good administration) requires clear reasoning; and second, because we ourselves have elevated this principle into one of the standards applied by the Ombudsman’s office. If we have elevated it to a standard, then it must be respected,” stressed Bjeković.
The problem of unassigned civil servants
On why the problem of unassigned civil servants, especially within the police, persists, Bjeković said that it raises suspicion as to why certain police employees remain unassigned for long periods. If the reasons are related to the quality of an employee’s work and contribution, then they should be defined as such.
“But if you keep someone on ‘stand-by’ for a long time without explaining why, that in itself raises questions. We have not received many complaints from police officers in this so-called passive position, apparently hoping the issue will be resolved. I assume that for some undisclosed reasons an officer was not acceptable to someone and thus ended up in such a status—which, in my strong opinion, is completely unacceptable, especially in a sensitive service such as the police,” he said.
Service contracts and rights violations
Addressing the problem of hiring through service contracts in public administration, Bjeković called for inspection authorities as well as financial oversight bodies to focus on this issue.
“There are several ways to prevent this abuse: one is distinguishing between formal and fictitious work, another is ensuring more court cases that prove that the tasks performed were not freelance work in the usual sense,” Bjeković stressed. He pointed to numerous problems faced by people engaged under such contracts, ranging from women being unable to exercise maternity leave rights to the denial of contributions necessary for pension and disability insurance.
He added that the problem does not lie only in service contracts but also in fixed-term employment contracts, especially in cases where contracts are deliberately set to expire before an employee could qualify for a permanent position.
New Law on the Protector of Human Rights and Freedoms
Work is underway on a new Law on the Protector of Human Rights and Freedoms. Asked about possible ways to strengthen the effect of the Ombudsman’s recommendations, Bjeković referred to court practice where, even when courts receive the Ombudsman’s opinion, they claim it is not legally binding and ignore it:
“That is absolutely incorrect. The very fact that the Ombudsman is a constitutional institution speaks to its position and the importance of its acts within the entire legal system, not just the courts. Courts must take the Ombudsman’s opinion into account—whether they accept it is up to them, but if they do not, they must provide reasoning, just like with any other act of a state body.”
Bjeković stressed the importance of preserving the authority of the Ombudsman’s institution, noting that the large number of urgencies in 2024 indicates that authorities often ignored requests for statements, and when they did respond, the replies were often superficial and failed to address the essence. The new law, he said, foresees sanctions for cases where an Ombudsman’s recommendation is not implemented or where an authority fails to submit a report on implementation, which would show whether there are objective or subjective reasons for non-compliance.
You can watch the podcast episode at the following link.