The activity duty and the duty to issue a statement

The duty for employers  

All Norwegian employers are obliged to work actively, targeted and systematically to promote equality and prevent discrimination in the workplace. The employer activity duty is preventative work that employers are expected to do before incidents of discrimination occur. Such incidents can be very stressful for the employee and the employer to handle. In addition, individual cases of discrimination rarely lead to structural change.  The activity duty is important as a preventive measure. 

The general activity duty states that all employers must identify and address challenges regarding equality and diversity in the workplace before any incidents of discrimination take place. On this page, you will find information on the legal framework and the four-step working method that employers must comply with and report on. All public sector employers and private sector employers of a certain size (50+ employees) must comply with the four-step working method. This work must be done in collaboration with employee representatives or trade union representatives.   

The activity duty in the Equality and Anti-Discrimination Act

To ensure that employees and job applicants enjoy equal opportunities regardless of e.g their sex, ethnicity, religion or responsibilities as caretakers, all Norwegian employers need to work actively, targeted and systematically to promote equality and prevent discrimination. 

The Equality and Anti-Discrimination Act §26, second paragraph states the following; 
 
All public undertakings, regardless of size, and private companies with more than 50 persons shall, in the context of their operation: 

A) investigate whether there is a risk of discrimination or other barriers to equality including by reviewing pay conditions by reference to gender and the use of involuntary part-time work every two years,

B) analyse the causes of identified risks,

C) implement measures suited to counteract discrimination and promote greater equality and diversity in the undertaking, and

D) evaluate the results of efforts made pursuant to a) to c).

The same shall apply to private undertakings that ordinarily employ between 20 and 50 persons if requested by the employees or employee representatives. 

Efforts as specified in this provision shall be documented. Efforts as specified in the second paragraph of the provision shall be made on an ongoing basis and in cooperation with employee representatives. 

This is new 

On the 1 January 2020, activity duty legislation was extended and made more comprehensive. 

For instance, activity duty shall now include a gender pay gap review every two years and companies are obliged to map the use of involuntary part-time work based on gender. 

These are the grounds of discrimination that the employers need to consider:  

• gender 
• disability 
• sexual orientation, 
• gender identity, gender expression 
• religion, belief 
• ethnicity 
• pregnancy 
• leave in connection with childbirth or adoption, care responsibilities 

Companies are also obliged to prevent intersectional discrimination – discrimination that takes place on the basis of several grounds which operates and interact with each other at the same time.  

Employers shall also seek to prevent harassment, sexual harassment and gender-based violence. 

Areas  

Employers’ responsibility to work to prevent discrimination and promote equality shall include areas of: 

• recruitment 
• pay and working conditions, 
• promotions 
• employee development opportunities 
• the duty to accommodate 
• the opportunity to combine work with family life 

This is not an exhaustive list. Employers are free to include other relevant areas in their anti-discrimination work.  

The reporting duty

All employers who work in accordance with the concrete method in § 26 a-d, must issue a statement on the company’s status in two parts. 

1. The actual status of gender equality in the company 
2. The work they have done on the activity duty in anti-discrimination a-d 

The statement on equality and anti-discrimination is to be published in the company’s annual report or another public document. If the statement is given in another public document, the annual report must reference this.  

The Norwegian Directorate for Children, Youth and Family Affairs (Bufdir) has published information on the statements and offer a template on how the statement can be structured. You can find it in the link below (in Norwegian).   

Part 1 of the statement: Actual status on gender equality in numbers 

Employers are obligated to map out the status on gender equality in their company. The general data protection regulation (GDPR) puts limits on what organisations can do with personal data. Employers are therefore only required to provide a statistical mapping on gender equality.   

The following elements, as a minimum, are to be included as part one of the statement.  

• The gender balance at the workplace 
• A breakdown according to gender of part-time workers 
• The proportion of temporary workers 
• The proportion of employees who have taken parental leave (women and men’s share in weeks) 
• Gender pay reporting 
• Results from the mapping on involuntary part-time work 

The last two elements shall be reported every two years as a minimum. 

In the preparatory work from the Ministry (Prop 63L, 2019, p. 82) the following statement on the reporting is made:  "In order to obtain useful and relevant overview, it is important that the share of each gender on the listed elements are included in the companies".

Gender pay gap reporting 

Reporting on the gender pay gap is set to take place every other year. This means that the reporting must be done for the first time at the latest for the fiscal year of 2021. If the company already has such statistics, you can choose to publish them in the annual report for 2020.  

The following elements must be a part of the gender pay report:   

• The reporting must be based on quantitative data and all employees must be included (either by monthly salary or annual salary for fulltime workers). 
• The employer must separate the total headcount of employees into relevant subcategories that makes it easy to evaluate work of equal value.  
• Pay reporting shall be based on the average payroll data from women and men in the relevant subcategories. 
• The proportion of men and women in each sub-category. 
• The mapping must contain a proper evaluation of what constitutes equal work and work of equal value (competences, responsibilities, effort and working conditions)  
• All remuneration must be included (fixed pay, bonuses, benefits, etc). These can be listed together or separate.  
• The results of the payroll data must be published anonymously. 

Employees shall have the opportunity to participate in the assessment on what type of work belongs in the different subcategories.  

Bufdir, the Norwegian Directorate for Children, Youth and Family Affairs has published a template on how gender pay report can be done. You can find the link below (in Norwegian).

Template on how gender pay report can be done (in Norwegian)

Part two of the statement: The work related to the activity duty

In part two of the equality statement, employers must give an outline of the work that they have done in order to meet the requirements set out in § 26 a – d. They must address the types of risks and obstacles that exist when it comes to potential discrimination in the workplace, and the active measures they have taken in order to combat these.    

About the Equality and Anti-Discrimination Ombud

The office of the Equality and Anti-Discrimination Ombud is a government agency administratively subordinate to the Ministry of Culture.  

As part of our mandate, we shall follow up on employers’ activity duty and their subsequent reporting duties.  

This gives us the opportunity to pay visits to the employers and to receive information and documentation on their equality and anti-discrimination work. The Ombud can also gain access to analysis on pay conditions, even when it cannot be anonymised. 

The Ombud can also file a complaint to the Anti-Discrimination Tribunal if we find that the reporting is insufficient. 

The Norwegian Anti-Discrimination Tribunal 

The Norwegian Anti-Discrimination Tribunal is purely a complaints body which makes decisions on specific complaints of discrimination and harassment submitted to the body.   

The tribunal may impose stoppages, remedial measures or other measures. The tribunal may also decide to impose a coercive fine. 

The Norwegian Directorate for Children, Youth and Family Affairs (Bufdir) 

The Norwegian Directorate for Children, Youth and Family Affairs (Bufdir) is responsible for services relating to child welfare, family counselling, adoption, violence in close relationships, equality and non-discrimination.   

On assignment from the Department of Culture, Bufdir  developed guidance material on the employers’ active duty. 

You can find their guidance material (in Norwegian)  here.