The Act of 15 January 2018 containing various provisions on employment makes it possible for social inspectors to carry out anonymous practice tests ("mystery calls") starting from 1 April 2018, albeit subject to strict conditions.
The Act of 15 January 2018 containing various provisions on employment (Official Gazette 5 February 2018) makes it possible for social inspectors to perform anonymous practice tests (also referred to as "mystery calls"). The Act adds a new section to the Social Criminal Code ("SCC") on "Special powers of social inspectors for observation regarding discrimination" (article 42/1 SCC) and an exception to their obligation of prior identification (article 20 SCC). The new powers take effect on 1 April 2018.
The new powers of the social inspectors are aimed at detecting and determining violations of anti-discrimination legislation and its implementing decrees. The Act itself does not specify the "anti-discrimination legislation" in question. The parliamentary preparatory documents clarify that only observance of the General Discrimination Act, the Gender Act and the Racism and Xenophobia Act is intended to be covered.
The social inspectors will be able to pose as customers, potential customers, employees or potential employees in order to ascertain whether there is or has been discrimination based on a legally protected criterion.
However, this will only be possible if there are objective indications of discrimination or after a complaint or a report supported by results of data mining and data matching (to prevent fishing expeditions).
The exercise of this special power will only be possible with the prior written approval of the labour auditor or the public prosecutor. All actions and their results must be recorded in a report and communicated to the labour auditor or the public prosecutor.
The social inspectors may not commit any criminal offence. However, they will not be punished when, in the context of their mission and with a view to its success or to ensure their own safety, they commit strictly necessary offences (e.g. the use of a false name) with the express and prior consent of the labour auditor or the public prosecutor.
The person or persons who are the subject of these anonymous practice tests may not be provoked. The method of detection must be limited to creating the opportunity to uncover a discriminatory practice. It can only be exercised if it is necessary to determine the real circumstances and if this cannot be achieved in any other way.
The social inspectors exercising these special powers do not have to provide proof of identity or communicate their capacity. For example, a social inspector can pose as an applicant.
Forewarned is forearmed! The employer is best advised to give the necessary attention to an anti-discrimination policy within the company.