4.1.1 National Legislation on Gender Discrimination in Employment

A study of the different Constitutions of the countries analysed shows that the principle of anti-discrimination is anchored in their regulations.

The comparative analysis of Constitutions across the studied countries reveals a consistent integration of anti-discrimination principles within their legal frameworks. Legislation has been carefully crafted to align with EU directives on gender discrimination in employment, with particular emphasis on provisions against harassment. Directive 2006/54/EC of the European Parliament and Council (effective from 5 July 2006) mandates equal opportunities and treatment of men and women in employment and occupation, defining harassment and sexual harassment as critical considerations.4

Following the legal framework, the reports highlight significant policy initiatives. For instance, the Spanish report discusses the government’s new Care Strategy: the State Strategy for a new model of community care - A process of deinstitutionalisation (2024-2030). This strategy emphasises dignity, respect, and non-discrimination, aiming to create safe, nurturing, and supportive environments for individuals requiring care. It incorporates a gender perspective to address disparities in access, use, and control of social resources and services between men and women. Additionally, the strategy adopts an intersectional approach, acknowledging that individuals may face discrimination due to multiple overlapping social categories, such as gender, socio-economic status, disability, or migrant status. This approach informs tailored measures to dismantle barriers experienced by vulnerable population groups.

The discrimination documented in the reports takes various forms in relation to contexts and subjects. In Italy, gender-based discrimination surfaced prominently during a National Stakeholder Meeting, particularly concerning maternity rights. For example, a female employee in a public health institution faced resistance when seeking to transition from full-time to part-time employment due to maternity reasons. Despite legal protections ensuring equal treatment for part-time and full-time working mothers, initial denial by the administration required intervention from labour inspectors and legal recourse for resolution.

Moreover, reports underscore instances of discrimination against foreign workers. For instance in Italy, an Albanian worker encountered harassment and coercive tactics leading to resignation upon return from maternity leave. Despite efforts to address the employer’s discriminatory behaviour, procedural limitations hindered effective resolution.

Intersectional discrimination is another significant issue highlighted across reports. As in the case of a Moroccan female workers in Spain wearing the Hijab that encountered considerable workplace challenges due to their ethnicity and religious practices. Such discrimination underscores the complex interplay of gender, ethnic background, and religious identity in shaping individuals’ experiences within the labour market.

In conclusion, these reports collectively affirm the alignment of national legislation with EU directives on gender discrimination in employment. They underscore the importance of robust legal frameworks and policy initiatives in combating discrimination and promoting equality in the workplace.

4.1.2 Presence of Women Workers in the Care Sector

The reports submitted for WP3 consistently highlight the substantial presence of women in the care sector across all countries studied.

In some instances, when considering the care sector, notable gender disparities are evident across countries such as Germany, Sweden, and France, where female representation exceeds 80% (the Polish report highlights the sector’s high feminization). For instance, the German report underscores that a substantial majority of employees in the German care sector are women (81%–83%), contrasting sharply with the broader German labor market, where men predominate (54% versus 46% women). The report indicates that women dominate across all care occupations except emergency medical services, where three-quarters of employees are men. Women are slightly more represented in outpatient care compared to inpatient care and are more prevalent in elderly care than in medical nursing. The largest number of women in the care sector are employed in nursing in medical care.

Turning to the Report of Sweden, it states that labour market is one of the most gender-segregated across Europe, though this trend is gradually diminishing.5 The pronounced gender divide has been attributed to the rapid increase in women’s labour force participation between the 1970s and 1990s, when a large proportion of Swedish women entered the labour market in already female-dominated occupations, including care workers’ occupations.6 Today, the most common occupation in Sweden is “assistant nurse in home care, home health care and residence homes for the elderly”. Women make up 89% of the employees in this occupation. Similarly, except for emergency medical services (ambulanssjukvårdare), other occupations in the care sector are heavily female-dominated.7

The French report underscores the high feminization of healthcare professions. According to a 2019 survey on the care sector,8 86% of nurses are women; 88% of care assistants are women; 94% of home helpers are women. The proportion of female employees in the broader home help, support, care, and services sector is estimated at 95% as of amendment no. 59 of 2023. The majority of employees are women (82.3% in 2015 according to the Dares), with few qualifications (only 7.5% have more than a baccalaureate, compared with 38.4% of all employed people) and an average age higher than that of the working population (46 compared with 41).9

Regarding Italy, the report delves into various types of care workers: health professionals with a maximum of a Bachelor’s degree, social and care workers, basic care workers, and home caregivers. The Report states that Italian legislation is highly fragmented, particularly concerning the professional roles of Social and Care Workers and Basic Care Workers. It is also important to mention that during the Italian National Stakeholders Meeting,10 some employer associations and trade unions emphasised the issue of labour shortages. According to the report, the main cause of these labour shortages has been the numerous turnover blocks introduced by legislation in order to contain public spending on healthcare.11 The report points out that according to the National Institute for Public Policy Analysis (Istituto nazionale per l’analisi delle politiche pubbliche, or INAPP) there were slightly under 618,000 care workers in Italy in 2020, with 68.7% of women and 31.3% of males working in this field.12 More than 72% of individuals work in healthcare institutions, with nurses and midwives accounting for 59.3%, physicians and dentists for 23.1%, and other carers (social and care workers, basic care workers) for 17.6%.13

Finally, the Spanish report highlights the distinction between paid and unpaid care, yet underscores that caregiving responsibilities predominantly fall on women. Many women assume caregiving roles not by choice but due to economic and social pressures. The report also identifies a significant, largely female workforce being diverted to caregiving roles without adequate coverage or recognition. Moreover, it emphasizes that men do not equally share caregiving responsibilities, perpetuating a discriminatory allocation of care duties that reinforces gender inequality. In any case, in relation to family domestic work, according to data from the Ministry of Labour, in 2019 (data will be discussed later, as of 2022) the number of 402,500 people affiliated to the Special System for Domestic Employees was reached, of which 18,000 are men and 384,500 are women.14 These figures allow us to visualize how this social protection system is intensely feminized, whether we are talking about Spanish nationals or foreigners. In this regard, if we review the statistics corresponding to foreign workers affiliated to Social Security who are registered as workers,15 it turns out that out of a total of 170,444 affiliated to the Special Family Home System, 10,251 are men and 160,179 are women. On the other hand, the work of domestic workers confirms the increasing presence of migrant workers in the context of a process of progressive replacement of native women, as will be demonstrated later with the data on this subject recorded to date.

In summary, these reports underscore common themes such as the predominant presence of women in the care sector across Europe. They also highlight challenges related to informal employment practices and the integration of migrant populations, particularly within domestic services. These findings underscore the urgent need for comprehensive policies addressing gender equality, labour rights, and social protections within the European care sector.

4.1.3 Provisions in Legislation or Collective Agreements on Employment Contracts, Occupational Classification, Wages, Health and Safety, Termination of the Contract or Social Benefits in the Care Sector

A) In general terms, the different reports show that there are no special regulations that distinguish employment contracts in the care sector. In other words, the definition and meaning of an employment contract are the same in the care sector as in other sectors. There are no specific provisions on employment contracts with regard to gender.

In Italy, Germany and Spain “special” regulations on occupations specific to the care sector applies to parents. In France, such a specialisation is recognised within the care sector, primarily through collective bargaining. National collective agreements emphasise the unique environment of the employer’s or user’s home where the worker is employed. They highlight the importance of accountability and loyalty among staff, particularly to prevent the exploitation of vulnerable individuals receiving care.

The Italian report refers to the libretto di famiglia (family booklet). This family booklet is a particular form of employment contract that lies halfway between self-employment and subordinate employment, allows non-entrepreneur natural persons to manage operations relating to occasional work (registration, deposits, baby-sitting bonus and reimbursements) carried out by self-employed persons. The family booklet is a prefinanced nominative payment booklet consisting of payment slips with a nominal value of 10.00 euros, aimed at paying for work activities lasting no more than one hour. The activities that the user can remunerate by means of the family booklet are specified by law and consist of minor domestic work, including gardening, cleaning or maintenance work; home care for children and elderly, sick or disabled persons; private lessons. In any case, there is no maternity protection for occasional work paid with the family booklet. Until 31 December 2025, employers hiring or converting domestic workers to indefinite contracts for assisting elderly individuals aged at least eighty years, already receiving the accompanying allowance, are granted a 100% exemption from total social security contributions and insurance premiums for up to 24 months.

German Report points out that there are special regulations for the care sector in the Working Hours Act, for instance, the general rest period after the end of the daily working time can be reduced from eleven hours to ten hours for care workers according to section 5 (2) if this reduction is compensated by the extension of another rest period within one month. Section 5 (3) codifies an exception for on-call duty specifically created for care workers: Interruptions made during on-call duty can be compensated for at other times if the interruption does not exceed half of the rest period.

Similarly, the Spanish report indicates that no specific provisions have been identified regarding employment contracts in the care sector that differ from contracts in other productive sectors. However, it is noteworthy that within the realm of domestic service, the employment relationship between the worker and the head of the household is considered “special,” governed by specific regulations distinct from those of ordinary employment regimes. Nevertheless, there has been a legal trend towards unification of these contract types, particularly evidenced by the abolition of the non-causal annual temporary contract that was applicable in this sector until 2022, and its alignment with the provisions of the Workers’ Statute concerning temporary contracts.

The Spanish report highlights initiatives by the government aimed at incentivising hiring in two specific contexts: firstly, within the “family context,” and secondly, for caregivers within large families. These initiatives involve granting bonuses to employers who hire in these categories, effectively reducing the tax or Social Security contributions required for such employment. When it comes to hiring a carer within the framework of large families, the law states that carers are considered to be

natural persons in the service of the family home in which the object of their special employment relationship is constituted by services or activities provided in the home of large families that are officially recognised as such under said law, and which consist exclusively of the care or attention of the members of said large family or of those who live in the home of the same, The latter may be verified by means of the corresponding inspection (see the Sixth Final Provision of Royal Decree-Law 2/2024, of 21 May, adopting urgent measures to simplify and improve the level of unemployment protection assistance, and to complete the transposition of Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on reconciling family and working life for parents and carers and repealing Council Directive 2010/18/EU).

To conclude, no legal regulations have been found that differentiate between employment contracts in the ordinary field (those performed by a worker in any sector) and the care sector. In countries such as Spain, in recent years there has been a unification of the types of employment contracts between the common and ordinary work and those performed in domestic work.

B) Regarding whether legislation or collective agreements provide for a system of occupational classification in the care sector, it has not been identified that specific professional classification systems exist in either legislation or collective bargaining agreements. No evidence of gender bias in occupational classification has been detected.

However, this issue can be viewed in relation to the question of whether the regulations or collective bargaining affecting the care sector recognize in any way the important presence of women in this sector or in any of the occupations. Most countries take a general perspective applicable to both genders. Yet, some, like Sweden and France, use neutral language for workers in the care sector. In Spain, specific legislation on domestic work recognises the significant female presence in the sector, addressing potential discrimination issues. Nevertheless,, collective agreements in countries such as Spain do not reflect the significant feminization of the sector.

To sum up, regarding occupational classification, a common observation is that gender is irrelevant for the professional classification of workers. Nonetheless, reports, such as the German one, note that while there are no gender biases in legislation and collective bargaining agreements, empirical data show differences in pay between men and women with the same qualifications. For instance, in Germany, in the occupational subgroup nursing without specialization, the median pay of full-time male nursing employees in 2022 was 3,956 EUR, while it was only 3,771 euros for female nursing employees; in elderly care, it was 3,452 euros for men and 3,283 euros for women. Meanwhile, reports from Poland suggest certain care occupations are gender-specific, with “nursing” being predominantly female. Occupational classification in the care sector, adheres to gender-neutral rules.

The Swedish report refers to the fact that some occupations in the care sector are clearly distinguished from others in that they require a license from the National Board of Health and Welfare, which also functions to classify these occupations. This applies to nurses and assistant nurses, who must produce a university diploma from a nurse programme or, for assistant nurses, an upper secondary school diploma from a health and care programme. However, Care assistants and personal assistants for persons with a disability are not covered by a license requirement.

Finally, the Spanish Report concludes that ccollective agreements provide for a classification system with respect to the work carried out in any case. For instance, the Agreement on care services for dependent people and the development of the promotion of personal autonomy, which cover all the Spanish State, categorises roles based on the function that is carried out, and where they are carried out (in a home for the elderly, home help, telecare). In short, it does exist, and it presents a classification of care work, but it is based on the professional activity and not on the gender of the person who carries it out.

C) Regarding wages and particularly minimum wages in the care sector, it is important to note Directive (EU) 2022/2041 as a foundational document. This Directive aims to establish a framework ensuring: a) adequate statutory minimum wages that provide for decent living and working conditions; b) promotion of collective bargaining for wage-setting; c) enhanced access for workers to minimum wage protection as stipulated by national law and/or collective agreements.16

The Italian report indicates that Italy does not set a statutory minimum wage by law. Generally, remuneration is determined freely by the parties involved. Remuneration is generally determined through collective bargaining, historically leading to progressive national wage increases. However, Italian case law has expanded the application of collective agreements’ wage sales to all workers employed in a specific sector under Article 36 of the Constitution. The adoption of Directive 2022/2041 on adequate minimum wages in the EU does not oblige member states to introduce statutory minimum wages, nor does it establish a common threshold valid throughout the EU. It merely establishes some criteria to ensure minimum wages, above the subsistence threshold, considering the cost of living and purchasing power of the relevant member state. The two alternative ways to achieve this are to set a statutory minimum wage or to extend the coverage of collective bargaining. This coverage will have to reach 80% also, if necessary, through an action plan under EU monitoring. Notably, neither collective bargaining nor legislation in Italy includes provisions for gender-differentiated pay structures. Anti-discrimination laws and the principle of equal treatment prohibit gender-based salary discrepancies.

In Germany, the Sixth Nursing Working Conditions Ordinance prescribes minimum wages for the care sector, varying by occupational classification. The collective agreements for the public sector—are prevalent in the care sector—further differentiate according to occupational classification. Moreover, Sec. 2 (1) 6. PflegeArbbV differentiates the minimum wage according to the level of training (nursing assistants without a degree, nursing assistants with one-year training, and nursing professionals with three years of training and a state examination) and their work experience. Collectively agreed wages in other sectors are mostly structured similarly to wages in the care sector: payment is based on tasks, education/qualification level and work experience. Even though these three characteristics are referred to with varying intensity, structural differences are not discernible.

In the Act on the method of determining the basic remuneration of certain employees employed in healthcare entities (Act of 8 June 2017, Journal of Laws from 2022, item 2139), Poland stipulates a general statutory minimum wage for employees in the health sector. For all other care employees not employed in healthcare entities, the minimum wage is regulated in the Act on minimum remuneration, that since July 2023 shall be monthly 3.600 PLN (amount 807 EUR, Act of 10 October 2022, Journal of Laws from 2020, item 2207).

Sweden lacks statutory regulation of wages, including a statutory minimum wage. Wages are set within the framework of sectoral collective bargaining with extensive elements of local wage agreements and individual wage setting. Wages may not be determined on the basis of gender, and collective agreements must be in accordance with the requirements in the Discrimination Act (2008:567).

France upholds the principle of equal pay for equal work or work of equal value (the notion of “equal value” is defined in article L. 3221-3 of the French Labor Code), enshrined in legislation since 1972. Although the pay gap has narrowed steadily over the last 25 years (from 22.1% in 1995 to 15.5% in 2021 for comparable working hours and jobs), significant differences remain due to the fact that women are more likely to work part-time, and to the gendered distribution of occupations and lower-paying jobs.17

In Spain, domestic workers in family homes are subject to specific minimum wage regulations distinct from other sectors. This difference applies exclusively to domestic workers who work on an hourly basis, on an external basis. In this case, according to Royal Decree 1620/2011, the minimum reference wage will be the one established in the royal decree setting the minimum interprofessional wage for temporary and seasonal workers and domestic employees annually, which includes all remuneration concepts. This minimum wage shall be paid entirely in cash, in proportion to the hours actually worked. In this regard, based on Royal Decree 99/2023, of February 14, 2023, which sets the minimum interprofessional wage for 2023, in particular its article 4, it is foreseen that the minimum wage for domestic employees will be 8.45 euros per hour actually worked. The Randstad study on salary trends (2024) in Spain18 shows salary rates in the health sector (care is excluded from the scope) highlight varying pay rates for roles like nurses and nursing assistants, ranging from euros 16,000 to euros 52,000 annually depending on experience and location.

In summary, minimum wage frameworks vary across countries, established either through collective bargaining agreements or legislative mandates. However, principles of equal pay for work of equal value are uniformly upheld, aiming to mitigate gender-based wage disparities across the care sector.

D) The issue of contract termination in the care sector reveals contrasting approaches across Europe, reflecting varied legal frameworks and judicial interpretations.

In Italy, domestic workers and home caregivers are exempt from statutory protections against dismissal (Article 62 of Legislative Decree no. 151 of 26 March 2001 and Articles 2240 and 2244 of the Civil Code). This allows for termination at will, without formal procedures, even during maternity.

Conversely, Spain implemented a 2022 reform abolishing unrestricted termination by employers of domestic workers. Now, termination is permissible only under specific circumstances such as economic constraints or a substantial change in family needs, or due to the worker’s conduct affecting the employer’s trust.

Legal cases underscore the significance of termination practices in the care sector. For instance, in Italy, the Catanzaro Court of Appeal (6 May 2014, no. 676) ruled on a case involving a female employee dismissed by a private clinic. The dismissal, part of a collective redundancy process, was deemed discriminatory due to gender bias in the classification of employees. The court upheld the employee’s appeal, highlighting discriminatory criteria used in her dismissal.

Another case is German. In 2021, the Regional Labour Court in Mecklenburg-Vorpommern addressed a case where a professional nurse working for a disabled person faced contract termination due to the employer’s death. Pregnant at the time, she argued against the termination citing maternity protection laws (Sec. 17 MuSchG), but the court upheld the contract’s fixed-term nature, resulting in dismissal. In Spain, the Supreme Court Judgment of January 29, 2020 (Appeal no.: 2401/2017) involved a domestic worker dismissed by her employer, which was initially ruled unfair and later nullified due to pregnancy discrimination. The court awarded increased compensation, though it did not reinstate the worker or reconsider the nature of the dismissal under applicable laws.

These cases highlight the judicial nuances and protections (or lack thereof) regarding termination in the care sector across Europe. While Italy maintains flexible dismissal rules for domestic workers, Spain and Germany illustrate evolving legal protections and judicial interpretations, particularly concerning discriminatory dismissals and maternity rights. These examples underscore the complexities and disparities in legal frameworks governing employment termination within the care sector across different European jurisdiction.

E) When examining unemployment benefits, significant disparities emerge across Europe, as illustrated by various national reports. Italy’s report highlights a notable issue concerning domestic workers and home caregivers. Legislative Decree no. 22 of 4 March 2015 mandates a stringent condition for accessing unemployment benefits: individuals must have worked for at least 30 days in the 12 months preceding job termination. This criterion disproportionately affects domestic workers, who often face challenges in proving their work attendance due to the nature of their roles. The calculation method, based on conventional wages and hourly thresholds, further complicates access to benefits for part-time domestic workers, reinforcing inequalities within the sector.

This Italian regulation potentially conflicts with European directives, particularly in its implications for indirect discrimination based on gender. The Court of Justice of the European Union, in its landmark judgment of February 24, 2022 (Case C-389/20, CJ v Tesorería General de la Seguridad Social), ruled that similar exclusions from unemployment protection could constitute indirect discrimination under Directive 79/7/EEC. This ruling stemmed from a case in Spain, highlighting systemic gender disparities within care work sectors predominantly staffed by women.

F) In addressing provisions for women’s occupational safety and health, it is crucial to note that the care sector, particularly in domestic service (or the provision of services for family homes), is frequently characterised by menial, precarious, poorly remunerated, and socially undervalued positions. Many roles within this sector are not adequately recognised or valued by society.

It is essential to highlight data from the Report on Spain,19 which reveals a high incidence of work incapacity due to health issues within the care sector. Contributing factors include the inadequate recognition by many female caregivers of the physical demands of their work and a lack of training on managing both the physical and psychological aspects of caregiving. This lack of awareness and preparation significantly increases the risk of workplace accidents.

Moreover, well-documented issues such as health burnout—prevalent among geriatric workers due to the low expectations of patient recovery—and the general stress associated with caregiving, particularly for severely ill or disabled patients, further exacerbate these challenges. Additionally, psychosocial risks in the workplace, including violence, harassment, and stress, further compound the difficulties faced by caregivers in this sector.

4.1.4 Provisions in Legislation or Collective Agreements for Reconciling Work and Family Life20

Across the countries analysed in this project, legislation addressing the balance between work and family life generally applies universally, without specific provisions tailored exclusively to the care sector.

Reports from Germany, Spain, and Poland indicate that regulations concerning work-life balance apply broadly across sectors, including the care sector. Notably, in Spain, public authorities encourage care facilities for individuals with disabilities to implement measures facilitating work-life balance for their staff. This initiative supports new service provisions under public agreements, promoting conditions conducive to the reconciliation of work and family life.

In France, the 2018 agreement on quality of life at work and professional equality within private hospital NCCs emphasises practical measures for balancing work, family, and personal life. Recommendations include flexible meeting schedules and adaptations for night workers transitioning to day shifts, enhancing overall working conditions and accommodating family responsibilities. These provisions, however, do not specify gender-based considerations exclusively for women in the care sector.

Similarly, Sweden’s report highlights that while specific rights regarding work-life balance do not explicitly target female care workers, court cases have addressed issues of discrimination, particularly concerning parental and caregiving responsibilities. Notably, cases have examined dismissals related to caregivers’ family obligations, underscoring legal protections but not gender-specific legislative measures.21

In Spain, while legislation lacks explicit provisions for written leave of absence tailored to care workers, the transposition of EU Directive 2019/1158 aims to enhance work-life balance for parents and caregivers. This includes the introduction of non-transferable parental leave, designed to encourage gender equality in caregiving responsibilities.

In conclusion, the absence of specific legal provisions or court cases focusing on work-life balance for women in the care sector across the analysed countries indicates a generalised approach to legislative frameworks. While collective agreements may offer some flexibility, the overall lack of targeted measures suggests potential challenges in reconciling care work with family responsibilities. Addressing these issues requires comprehensive public resources and broader societal engagement to promote gender equity in caregiving roles and facilitate a more balanced distribution of work and care responsibilities.22

4.1.5 Presence, Role and Effectiveness of Equality Bodies in Relation to the Rights of Workers in Care Occupations23

Equality Bodies have prioritised examining workers’ rights within care occupations to enhance the recognition and value of these roles, as seen in France. The French Report underscores the systemic undervaluation of jobs predominantly held by women, emphasising the need for proactive measures under the principle of “equal pay for work of comparable value”. This includes efforts to elevate the status of personal service professions through improved income, working conditions, social protections, training opportunities, and overall recognition.

The French Report highlights initiatives such as the guide by the Defender of Human Rights and the High Council for Professional Equality.24 These resources address the undervaluation of female-dominated professions, advocating for policies that promote equality across various dimensions. Additionally, the Clersé-CGT report supports these findings,25 citing feedback from a consultation titled “Mon travail le vaut bien” (“My job is worth it”),26 where nurses and care assistants expressed pride in their work but stressed the importance of implementing effective measures for gender equality.27 Recommendations include regular evaluations of equality measures by companies, administrations, local authorities, and hospital facilities.

Apart from Equality Bodies’ reports, other documents offer valuable insights. Notably, the Spanish Report includes findings from the Economic and Social Council’s publication on Women, Work, and Care: Proposals and Future Perspectives.28 This report highlights significant information gaps, as official data often lack gender disaggregation and qualitative analyses, impeding accurate diagnoses of women’s situations across sectors. The report stresses that making women’s specific issues visible is crucial for designing effective solutions. It recommends that statistical agencies improve the production and updating of sex-disaggregated data to better understand women’s realities in areas such as time use, income, Social Security affiliation, health, healthcare access, entrepreneurship, digitalisation, science and technology, and social protection.

Additionally, incorporating a gender perspective in all research, including qualitative analysis, is essential to capture the full scope of women’s experiences and identify persistent inequalities.

4.2.1 National Legislation Against Discrimination on the Grounds of Race or Ethnic Origin, Religion or Belief, in the Field of Employment or Occupation29

Anti-discrimination legislation in the partner countries aligns with EU Directives 2000/43/EC and 2000/78/EC, focusing primarily on ethnicity, religion, or belief. Notably, migrant status is not uniformly recognised as a discriminatory factor across these legal frameworks. Spain, however, acknowledges migrant status as a significant barrier to employment, highlighting it as a factor of vulnerability.

Starting with the Constitution, Italian labour law incorporates specific anti-discrimination provisions, albeit without a comprehensive framework. Discrimination based on ethnicity, religion, and other factors is addressed through various legal provisions. The Italian labour legislation, for instance, protects care workers under employment contracts from discriminatory practices.

Poland’s Constitution guarantees equality before the law and prohibits discrimination based on race, ethnic origin, and religion. The Labour Code extends anti-discrimination protection to care workers across healthcare entities, ensuring equitable treatment in employment.

Sweden imposes a constitutional obligation on public entities to combat discrimination based on skin colour, national or ethnic origin, language, or religion. However, immigrant status is not explicitly protected under the Discrimination Act, which instead focuses on broader principles of equal treatment and non-discrimination.

Starting with the Constitution, French law prominently prohibits discrimination based on race or origin, explicitly listing criteria such as ethnic origin, colour, or membership in national minorities. This comprehensive approach extends to various legal contexts, ensuring equality and non-discrimination, particularly within care services.

Spanish legislation includes robust anti-discrimination measures in labour and criminal law. Royal Legislative Decree 2/2015 and subsequent amendments establish severe penalties for discriminatory acts. The transposition of EU Directives into national law through Law 62/2003 and its 2022 amendment, Law 15/2022, provides comprehensive protection against all forms of discrimination. This includes expanding protection to socio-economic status, health conditions, and other personal or social circumstances.

In conclusion, while EU Directives 2000/43/EC and 2000/78/EC set a common foundation for anti-discrimination legislation across member states, there are variations in implementation and scope. Each country studied demonstrates a commitment to combating discrimination, with distinct legal frameworks and protections. Spain’s recent legislative updates exemplify proactive measures to broaden anti-discrimination safeguards, establishing a robust framework for equality legislation within the European Union.

4.2.2 Legislation Concerning the Rights and Duties of Third-Country Nationals of the EU

All EU countries have specific regulations governing the access of foreigners to their respective states. These regulations often aim to favour qualified immigration while preventing the exploitation of migrants.

In 2024, the Directive 2024/1233/EU of the European Parliament and of the Council, of 24 April 2024 concerning a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State (recast) has been approved. Article 1 of the Directive provides for the establishment by the Directive of a

common set of rights for third-country workers legally residing in a Member State, irrespective of the purpose of their initial admission to the territory of that Member State, based on equal treatment with nationals of that Member State.

Directive 2024/1233/EU established extended areas for equality, namely “employment and working conditions, including as regards pay, dismissal, working hours, leave and vacations, and equal treatment of men and women, as well as health and safety at work”; in addition also the

right to strike and to take industrial action, in accordance with the national law and practice of the Member State, and to freedom of association, affiliation and participation in organisations of workers or employers or in any professional organization, including the rights and benefits which such organisations may confer, such as the right to negotiate and conclude collective agreements, without prejudice to national provisions relating to public policy and public security.30

Directive 2024/1233/EU repeals Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 establishing a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and establishing a common set of rights for third-country workers legally residing in a Member State. The national reports were compiled under Directive 2011/98/EU as transposed into national law.

Certain national reports highlight issues of interest regarding immigration legislation. For example, the report from Italy focuses on Legislative Decree no. 286 of 25 July 1998 (Consolidation Act on Immigration), which is the cornerstone of the country’s immigration system and has been continually and progressively tightened. Beneficiaries of international protection are granted unlimited access to the national labour market. In contrast, asylum applicants are permitted to work only after sixty days from the submission of their application for international protection, provided the application has not yet been processed and the delay is not attributable to the applicant. Additionally, the residence permits issued under these circumstances cannot be converted into residence permits for work purposes (Article 22, Legislative Decree no. 142 of 18 August 2015). Moreover, the Italian report notes that no specific incentives are provided to facilitate labour market access for asylum seekers, international protect.

According to the German report, the rights and obligations of EU third-country nationals are regulated by the Immigration Act (Gesetz zur Steuerung und Begrenzung der Zuwanderung und zur Regelung des Aufenthalts und der Integration von Unionsbürgern und Ausländern, Zuwanderungsgesetz, ZuwandG). In August 2023, Germany passed the Act on the Further Development of Skilled Labour Immigration (Gesetz zur Weiterentwicklung der Fachkräfteeinwanderung) to implement the EU Blue Card Directive 2021/1883 and improve labour market access for low-skilled workers and asylum seekers. Skilled labour pillar still is the central element of immigration: the report states that whoever is a skilled worker should be able to pursue any qualified occupation in the future. The Federal Employment Agency ensures that foreign workers are not employed under less favourable terms than German nationals in equivalent positions (Sec. 39 (2) no. 1).

Sweden’s current legislation includes the Aliens Act (2005:716) and the Aliens Ordinance (2006:97). Major changes are underway to address the misuse of residence permits for studies and to propose legislative changes limiting work during studies. Following reports of extensive abuse of residence permits for studies where students use their residence permits primarily to work, the Migration Agency and the Swedish Association of Higher Education Institutions (SUHF) has been tasked to take action to stop the fraud, and a government inquiry has been set up to propose legislative changes to limit the possibilities to work during studies.31 In the area of labour immigration, in February 2024, a government inquiry presented a proposal recommending an additional increase of the recently raised wage floor. The proposal is that that the minimum wage level should correspond to the median salary or to around 3400 euros / month.32 For occupational groups facing a labour shortage, the proposal suggests that the government could require wages to match the lowest rates specified in collective agreements or established industry practices. This exception is particularly relevant for the care sector, where addressing the labour shortage is a pressing concern. Sweden’s municipalities and regions estimate that by 2031, they will need to recruit over 30,000 new nurses, 93,000 assistant nurses, and 20,000 new care assistants due to retirements and an overall increase in demand for staff.33

Spain regulates the rights and duties of foreigners through Organic Law 4/2000 on the rights and freedoms of foreigners in Spain and their social integration (LE/2000), and Royal Decree 557/2011 (RLE/2011). This legislation recognises the rights and responsibilities of immigrants based on their legal status in Spain, specifically whether they have been authorised by the State to reside or work there. For foreigners in an irregular situation, meaning those in Spain without a residence permit granted by the Spanish State, it is important to note that they lack the legal right to work and cannot access any type of employment. However, if they are working despite this, Article 36.5 of the LE/2000 states that

the lack of a residence and work permit, without prejudice to the employer’s responsibilities to which it gives rise, including those of Social Security, shall not invalidate the employment contract with respect to the rights of the foreign worker, nor shall it be an obstacle to obtaining benefits derived from cases contemplated by the international conventions for the protection of workers or others that may correspond to them, provided that they are compatible with their situation.

4.2.3 Presence of Migrant Populations (Both EU and Non-EU Nationals) in Employment and in the Care Sector

The project reports indicate varying levels of migrant participation across sectors, with a significant presence noted in the care industry. Despite empirical observations suggesting a notable concentration of migrant women in caregiving roles, reports, such as those from Italy, emphasise the lack of scientific data to conclusively verify this perception. Existing databases do not provide sufficient evidence to substantiate the prevalent notion of high migrant female representation in this field.

France and Italy report a minimum of 9-10% migrant employment, while Spain follows with 12-13%. Sweden and Germany report higher percentages, approximately 20% and 29%, respectively.34 In France, the immigrant population constituted 10.3% of the total in 2022, higher than in previous years (5.0% in 1946, 7.4% in 1975, 8.5% in 2010, and 9.3% in 2018). Most immigrant occupations are in services (64%), with significant roles also in construction (19%) and industry (17%). Moreover, security guards and unskilled construction workers have a rate of 28% and 27% of immigrants respectively. Notably, domestic help employs the highest proportion of immigrants, with 39% of positions held by immigrants, significantly more than the overall immigrant employment rate in France. According to a 2019 survey on the care sector, 86% of nurses are women and 2.1% are immigrants; 88% of care assistants are women and 9.6% are immigrants; 94% of home helpers are women and 19% are immigrants. Moreover, according to the Insee Enquête Emploi 2019 survey focusing on selected care professions—nurses, care assistants, and home helpers—it reveals the following statistics: among nurses (combining public and private sectors), 86% are women and 2.1% are immigrants; for care assistants, the figures are 88% women and 9.6% immigrants; and among home helpers (auxiliaires de vie), 94% are women and 19% are immigrants.35 This occupation notably shows a significant over-representation of foreign-origin workers, far exceeding the proportion found in other sectors.

In Italy, third-country nationals accounted for 10.3% of the workforce in 2022, with substantial representation from Albanian, Chinese, and Moroccan communities. The report indicates that in 2022, 31.6% of workers in personal and collective services were foreigners, along with 17.7% in agriculture, 17.3% in catering and tourism, and 15.6% in construction. In sectors with the highest incidences of foreign employment, the majority of foreigners have non-EU citizenship. Non-EU employees account for more than 10% in the tourism and catering sector (13.4%) and agriculture (12.4%), while in collective and personal services the incidence rises to 22.6%.

In Germany, as of 2022, 23.8 million people had a migration background, representing 29.27% of the total population of 81.3 million. The term “migration background” refers to individuals who were either not born with German citizenship or have at least one parent who was not born with German citizenship, a classification used by the Federal Statistical Office since 2005. Among these, 13.4 million people (16.48% of the total population) did not have German nationality, even though they may have been born in Germany to non-German parents under the jus sanguinis rule (Sec. 4 StAG, Nationality Act). Most non-German nationals in Germany came from EU countries, with the largest groups being Romanian nationals (883,670), followed by Polish nationals (880,780), Italian nationals (644,970), and Croatian nationals (436,325). However, the largest single group of foreigners in Germany had Turkish nationality (1,487,110), followed by Ukrainians (1,164,200) and Syrians (923,805), the latter two groups primarily due to the ongoing war in Ukraine and the aftermath of the Syrian civil war.36 In 2022, Germany had 5.6 million foreign employees (4.9 million regularly employed), constituting 14.43% of the total workforce of 38.8 million (34.4 million regularly employed). Of these, 2.7 million were from EU countries, with the majority being Romanian nationals (564,000) and Polish nationals (553,000). Additionally, 2.9 million foreign employees were from non-EU countries, with the majority holding Turkish nationality (650,000). German report notes a significant presence of non-German employees in the care sector accounting.

In Sweden, the number of foreign-born residents has markedly increased from 1 million in 2000 to nearly 2.2 million by 2023, constituting approximately 20% of the population.37 A significant majority of these individuals were born outside the EU. Third-country immigrants now represent about 15% of Sweden’s total population, positioning the country as the EU’s third-largest host of non-European residents, following Luxembourg and Malta.38 The primary countries of origin for immigrants to Sweden include Syria and Iraq, with notable populations also originating from Iran, Somalia, and Afghanistan. In recent years, Sweden has implemented several legislative and policy changes aimed at reducing immigration and altering its demographic composition. By 2023, the annual influx of immigrants had approached nearly 100,000 individuals. The report highlights that foreign-born individuals represent a larger share of employees in the health and social care sector compared to other sectors, particularly those born outside Europe.39

As of 1 January 2023, Spain’s population stood at 48,085,361 inhabitants, showing an annual growth of nearly 600,000 people. Of these, 12.7% held foreign nationality, and 17.1% were born outside Spain. The largest demographic increases in 2022 were observed among citizens from Colombia (142,391), Ukraine (83,401), and Venezuela (64,498). As of the same date, the largest groups of foreigners in Spain were Moroccans (893,953), Romanians (629,755), and Colombians (453,911).

Regarding the labour market, Spain reported a total of 2,667,664 affiliates in November, with 867,610 originating from EU countries (462,042 men and 405,568 women) and 1,800,054 from non-EU countries (1,031,842 men and 768,212 women). Women constituted 44.0% of the affiliates, while men comprised 56.0%. By origin, 32.5% were from EU countries, and 67.5% were from other countries.

By autonomous community, Catalonia had the highest number of affiliates with 635,913 (23.84%), followed by Madrid (562,194, 21.07%), Andalusia (317,847, 11.91%), and the Valencian Community (310,268, 11.63%), based on November averages.

The presence of migrants across various occupations within the care sector remains challenging to precisely quantify based on current reports. However, both Italy and Spain affirm the substantial representation of migrants in roles associated with domestic service and home caregiving. Moreover, Northern European countries exhibit a more pronounced foreign workforce presence in health and social care compared to other sectors.

Spain’s report underscores the socioeconomic challenges faced by domestic workers, characterised by undervaluation, inadequate remuneration, and adverse working conditions. These conditions are exacerbated by the significant authority wielded by household employers, resulting in potential arbitrariness. Furthermore, the inherent instability of these roles, often involving simultaneous employment across multiple households, poses risks to the safety and well-being of workers.

4.2.4 Measures to Promote Migrant’s Access in the Care Sector

With the onset of the COVID-19 pandemic in 2019, measures were introduced to facilitate access to specific roles within the care sector for foreign personnel. These included easing entry into employment for health professionals such as foreign nurses and doctors and supporting domestic workers in irregular situations to obtain necessary residence and work permits.

However, current reports consistently highlight persistent staff shortages across the care sector. Notably, Italy has enacted legislative measures to enhance immigrant access to caregiving roles. For instance, Italy introduced a law allowing “professional nurses employed in public and private healthcare facilities” to enter the country outside the annual quotas set by the State, facilitating expedited market entry.

Similarly, Germany’s report illustrates provisions for granting temporary residence permits to recognise foreign qualifications, particularly beneficial in the health and care sectors. These permits aim not only to validate professional qualifications against German standards but also to authorise practice in regulated fields such as health, elderly, and childcare. Administered under the “Triple-Win” programme, collaborations between the German Society for International Cooperation (GIZ) and the Central Placement Office (ZAV) of the Federal Employment Agency streamline recruitment of nursing staff from abroad. Employers under this programme are required to provide language training up to CEFR level B2, cover qualification recognition costs, and arrange suitable accommodation, with each nurse placement incurring a gross fee of 7,900 EUR.

In Sweden, the National Board of Health and Welfare annually assesses supply and demand dynamics for licensed healthcare professionals, issuing reports like the National Planning Support. Approximately one-third of Sweden’s regions have initiated international recruitment programmes targeting EU/EEA countries and Switzerland, while one-fifth are actively pursuing similar initiatives with non-EU/EEA countries, albeit encountering administrative complexities. Language proficiency remains a critical barrier, prompting investments in language training and support services to facilitate professional licensing and employment, as exemplified by Skåne’s establishment of an international office that has successfully facilitated employment for 94% of supported individuals.40

In France, exemptions from work permit requirements are granted for occupations facing shortages. These sectors, such as healthcare roles including nurses and care assistants, are identified nationally. According to French law, “Article L. 414-13 allows residence permits under Articles L. 421-1 and L. 421-3 to be issued without considering employment availability in professions and geographic areas with recruitment difficulties”.41 The list of shortage occupations is specified in the 1 April 2021 Order, exempting work permits for non-EU, non-EEA, and non-Swiss nationals from employment market tests. This regulation ensures that lack of local candidates or prior market search cannot be grounds for denying work permit applications from individuals seeking roles in designated professional families and regions. Recent data shows high demand for care sector occupations like care assistants, nurses, home health aides, and household assistants in certain French regions.42 Additionally, France has bilateral agreements with several countries to manage migration, allowing workers from partner countries to enter, reside, and work without employment restrictions in sectors aligned with shortage occupations identified in the 1 April 2021 Order.43 These agreements, including those with non-EU nations in Africa, specify shortage occupations distinct from those covered by standard legislation (as per the annex to the April 1, 2021 Order, formerly governed by the January 18, 2008 Order).

Overall, these initiatives underscore ongoing efforts across Europe to address staffing shortages in the care sector, using targeted policies and bilateral agreements to facilitate immigrant employment and mitigate workforce deficiencies.

4.2.5 Activities of Equality Bodies or Organisations Regarding Racial, Ethnic or Religious Discrimination or the Rights of Migrant Workers in the Care Sector

Equality bodies exist in all countries, although with different competencies.

The actions and reports by equality bodies on the rights of migrant workers in the care sector vary significantly across France, Germany, Poland, Sweden, Spain, and Italy. In conclusion

There are notable disparities in the actions and reports of equality bodies regarding the rights of workers in the care sector across the six countries.

In France, the Ombudsman’s survey emphasises systemic discrimination and the intersection of inequalities in the personal services sector, with an important focus on the challenges faced by women and immigrant workers.

In Germany several organisations, including the EU Office for Equal Treatment of Workers, Minors and German Institute for Human Rights (Deutsches Institut für Menschenrechte or DIMR), are actively documenting and addressing the challenges faced by home care workers, particularly in Europe This, highlighting the legal problems and respect for working conditions.

In Poland despite the existence of key equality bodies, the rights of workers in the care sector have not been specifically addressed.

In Sweden, the Equality Ombudsman has carried out some follow-up activities, but has no specific reports on workers in the care sector.

No specific reports have been found in Spain, although general knowledge suggests that there is a perception of discrimination in the care sector.

In Italy, the National Office for Racial Discrimination (Ufficio nazionale antidiscriminazioni razziali or UNAR) has not focused on care workers, but the Association for Legal Studies on Immigration (Associazione per gli Studi Giuridici sull’Immigrazione or ASGI) reports highlight wider issues of institutional discrimination affecting access to welfare.

Overall, while some countries have proactive equality bodies that address the rights of workers in the care sector, others do not have specific actions and reports.

4.2.6 Legislation on Harassment of Migrant Women Workers in the Domestic Sector or Exploitation in the Workplace with Respect to Undocumented or Irregular Migrant Workers

In general, the countries examined have aligned their legislation with Directives 2000/43/EC, 2000/78/EC, and 2006/54/EC, focusing on employment regulations. However, it is notable that several countries lack specific regulations addressing domestic work. For instance, Poland’s legal framework does not directly address domestic workers, leaving them in precarious employment situations often categorized under civil law contracts or self-employment, which do not ensure adequate protection.

Similarly, while some countries have legislation governing domestic work, there is often a lack of specific laws addressing harassment in this sector. Domestic workers are particularly vulnerable to harassment due to the isolated nature of their work, yet they face challenges in substantiating such cases.

Regarding the exploitation of irregular migrants, the countries studied comply with Directive 2009/52/EC, which establishes minimum standards for sanctions against employers of illegally staying third-country nationals. France and Poland outline their legislative measures against workplace exploitation, although practical enforcement remains challenging, particularly for undocumented migrant workers who fear reprisals due to their immigration status.

Sweden has introduced a national strategy to combat labour-related crime, supported by active engagement from social partners and legislative reforms.44 The report states that there has been important engagement from the side of the social partners in some of the affected industries, and also from other actors.45 Recent legislative changes have been adopted, with further reforms currently underway in response to both completed and ongoing governmental inquiries.46

In Italy, there is concern over illegal labour recruitment exploiting vulnerable workers, notably in the agricultural and agri-food sectors known as “caporalato”. Law no. 199/2016 introduced provisions to combat this, amending Article 603 bis of the Penal Code.47 The practice retains foreign labour in Italy and attracts new migrants, often undocumented and vulnerable. Fear of deportation prevents these workers from reporting exploitation, highlighting the difficulty undocumented foreigners face in accessing justice. This results in underreported cases of severe labour exploitation and enduring poor living conditions, including precarious health, limited access to water, basic medical care, and adequate housing.

Directive (EU) 2024/1233, adopted on 24 April 2024, introduces a unified procedure for a single permit allowing third-country nationals to reside and work in EU Member States, alongside common rights for legally residing third-country workers (recast). It includes sanctions for employers who exploit the working conditions of regular foreign workers. Under Article 13, Member States must establish measures to prevent abuses and enforce penalties for breaches of national equal treatment provisions. These measures involve monitoring, assessments, and inspections, especially in high-risk sectors. The directive mandates effective, proportionate, and dissuasive penalties for non-compliant employers. Member States must ensure labour inspectorates or competent authorities have access to workplaces, including employer-provided accommodation with the worker’s consent. Article 14 facilitates complaints and legal redress for third-country workers, requiring Member States to establish accessible mechanisms for lodging complaints directly or through legitimate third parties and competent national authorities were provided by law.48

These legislative and policy measures underscore ongoing efforts across Europe to protect the rights of migrant workers, albeit with varying degrees of implementation and effectiveness.

1.1.1 Non-Discrimination Labor Law in the Private Sector

The fight against gender-based discrimination in the workplace includes a substantial body of rules set out in the Labor Code. These include, on the one hand, rules aimed at prohibiting employers from taking certain gender-related characteristics into account when making decisions (1.1.1.1), and on the other, means of action based on prevention, information and collective bargaining (1.1.1.2).

1.1.2 Non-Discrimination Law in the Civil Service

Civil service law contains provisions relatively similar to labor law for combating gender discrimination, sexual harassment and sexist behavior (1.1.2.1.1). To this end, public sector employers have obligations (1.1.2.1.2) and means are provided to prevent acts of discrimination, harassment and sexist harassment (1.1.2.1.3).

1.5.1 Access Conditions

The criteria used for recruitment are strictly based on the professional skills and/or aptitudes required to ensure equal access to employment for all. In very general terms, it was the Lyon-Caen law of 199260 that tried to make recruitment less subjective by specifying the methods authorized both when the job is offered and during the selection of the candidate. Title V of this law, on “Provisions relating to recruitment and individual freedoms”, amends various provisions of the Labor Code. Articles L. 121-6 to L. 121-8 of the Labor Code expressly refer to job applicants.

The company must therefore have made an offer for a vacant job or a job to be created.61

The rules governing the candidate selection procedure are set out in Article L. 120-2 of the Lyon-Caen Act (now Article L. 1121-1 of the French Labor Code), which states that “no one may restrict a freedom unless this is justified” by virtue of the principle of proportionality. This provision prohibits any restriction on labor law that is not justified by the nature of the task to be performed and not proportionate to the aim pursued.

Employers are required to publish their job offers on dedicated Pôle emploi or equivalent websites. Discriminatory references in job advertisements, such as gender, are prohibited, except in the case of certain types of civil service employment.62 With this in mind, a number of articles have been added to ensure that recruitment methods and the information requested from employees are relevant. Article L. 1221-6 of the French Labor Code requires that the questions asked of an employee during a job interview must be directed towards one goal: assessing the employee’s ability to occupy the proposed position. Questions relating to marital status, qualifications or the existence of a non-competition clause (which may give rise to civil liability) are permitted. Conversely, questions relating to private life, such as trade union membership, religion or pregnancy, are prohibited on the grounds of respect for privacy under article 9 of the French Civil Code. The Labor Code states that no employee may be discriminated against on the grounds of pregnancy.63 This protection has been elevated to the level of a fundamental freedom by the social chamber of the Cour de cassation (French Supreme Court).64 It considers that the dismissal of an employee on the grounds of her pregnancy infringes the principle of equal rights between men and women guaranteed by paragraph 3 of the Preamble to the Constitution of 27 October 1946, and constitutes a fundamental freedom in the same way as the right to strike, the exercise of trade union activity or the state of health.

Lastly, employers are required to be transparent when using certain methods (audio-visual recording of the interview), so that candidates are informed before they are used.

Thus, the principle of non-discrimination implies, in particular in the drafting of external or internal job offers, that job titles mention both genders or are gender-neutral and are formulated in an objective and non-discriminatory manner, particularly with regard to the definition of recruitment criteria. These criteria must therefore be strictly based on the skills required and the qualifications of the candidates.65

In addition to the existing legal and regulatory provisions, the conditions of access to the care professions are addressed within the framework of national branch collective agreements in order to provide guarantees of protection against unjustified differences in treatment or even prohibited discrimination in recruitment, assignment, remuneration, vocational training and career development, regardless of gender, family status or pregnancy.

To this end, certain extended collective branch agreements specifically indicate the presence and importance of women in the total number of employees in the sector. By way of illustration, the national collective convention of individual employers and home-based employment branch stipulates that

the representative trade unions and professional organizations in the branch of individual employers and home-based employment may rely in particular on the family employment observatory in order to assess the gender mix of jobs in the sector and any inequalities between women and men in access to employment and continuing vocational training.66

This particular attention to the presence of women in the personal services sector is reflected in the following terms:

Aware of the prejudices and stereotypes in the personal services sector in particular, due in particular to the very high proportion of women in the sector,67 the parties also undertake to promote diversity in the branch via objective recruitment and professional assessment mechanisms

and

the fact of making a job offer or a request for an internship or training conditional, refusing to hire, penalizing, to dismiss a person on the grounds of their origin, sex, family status, physical appearance, name, genetic characteristics, sexual orientation, age, state of health, disability, morals, political or trade union opinions and activities, membership or non-membership of a particular ethnic group, nation, race or religion, is punishable by criminal penalties under Articles 225-1, 225-2 and 225-4 of the French Criminal Code.68

The social partners in the personal services sector also stipulate that the employer must appoint an “equal opportunities correspondent” and consult the works council where one exists in the company. This “equal opportunities correspondent” is responsible for monitoring training and awareness-raising initiatives and for combating prejudice and stereotypes carried out by the employer. In companies with employee representatives but no works council, it is recommended that an “equal opportunities correspondent” be appointed from among the members of staff. The parties stress the important role of management in this area. Notwithstanding the employer’s legal obligations, an assessment report is drawn up annually by the “equal opportunities correspondent”. This report summarizes: recruitment procedures within the company, the distribution of new recruits with indications of gender, age and any cases of disability. This report is sent to the Works Council as part of the single annual report.69

In civil service law, Order no. 2021-1574 of 24 November 2021 repealed the provisions of the special statutes of the territorial and hospital civil services70 relating to conditions of access or recruitment,71 career management,72 and the promotion of civil servants,73 previously amended by the 2012 law containing various provisions relating to the civil service.74

Conditions of access to care professions based on (diploma or professional aptitude). It is interesting to be able to analyze more concretely the conditions of access to the care professions,75 in this case those relating to access to the professions of nurse, care assistant and home help, also known as life auxiliary. For example, there is a skills repertoire that describes and documents the skills required to work as a nurse76 or care assistant.77

Nurses and nursing assistants are classified as medical auxiliaries in the French Public Health Code. The profession of nurse is subject to specific regulations in the Public Health Code.78 Thus,

any person who habitually provides nursing care on medical prescription or advice, or in application of the role assigned to him or her, is considered to be practising the profession of nurse. Nurses take part in various activities, particularly in the fields of prevention, health education and training or supervision.79

The profession of nurse may only be practised by persons holding a diploma, certificate or authorization as provided for in the Public Health Code.80

Care assistants work in collaboration with nurses in health establishments or home services and may provide care within the respective limits of the qualification recognized as a result of their training. When the nurse is not present, the care assistant may carry out routine daily care related to a stabilized state of health or a stabilized chronic pathology which could be carried out by the person themselves if they were autonomous or by a career.81 The profession of care assistant is carried out by holders of the diplôme d’État d’aide-soignant, the certificat d’aptitude aux fonctions d’aide-soignant or the diplôme professionnel d’aide-soignant.82

Homecare professions are part of the medico-social sector. The Caisse nationale de solidarité pour l’autonomie (CNSA) has a broad definition of these professions,83 which include: home help, social auxiliary, care assistant, social and family intervention technician, etc. Home helpers are professionals who assist people who need help in their own homes. To work as a home carer, a diploma is required (Diplôme d’État Accompagnant éducatif et social or Auxiliaire de vie sociale, Bac Pro accompagnement, soins et services à la personne).

1.5.2 The Recruitment Procedure

In principle, it is the employer who chooses the job applicant. However, in the recruitment procedure, the principles of equal treatment and non-discrimination84 do not preclude differences in treatment where they meet objective criteria such as an essential and determining occupational requirement, the objective of which is legitimate and the requirement proportionate.85

During the job interview, the employer may only ask for written or oral information directly related to the job or work placement in question, in order to assess the applicant’s skills and suitability for the job.

Employers must not take a woman’s pregnancy into consideration when refusing to hire her or terminating her probationary period.86

Similarly, under civil service law, civil servants are recruited by competitive examination, unless otherwise stipulated.87 Under civil service law, the recruitment procedure is subject to the conditions governing the organization of competitions. Candidates for competitive examinations must meet these conditions as well as those set out in the specific statute of the body to which they are applying on the closing date for applications, unless otherwise specified in the specific statute of the body concerned.88

In the hospital civil service, the competitions mentioned in section 1 are opened, under the conditions laid down by the specific statutes: 1) Either by the competent State authority, at national, regional or departmental level; 2) Or by the appointing authority. The specific statutes may also provide for these competitions to be opened and organized within a region or department on behalf of several establishments among those covered by article L. 5, by the appointing authority of the establishment with the largest number of beds.89 The number of posts put up for competition is equal to the number of posts declared vacant for this competition.90

Finally, during the recruitment procedure for civil servants, the public employer asks applicants to provide data relating to their training and social or professional environment, in addition to the data required to manage the recruitment process, in order to produce studies and statistics on access to jobs. The collection and processing of this data is subject to strict regulations.91

Where the specific statutes of the job categories so provide, candidates for competitions for access to category A job categories who are declared suitable by the selection board are appointed as trainees by the Centre national de la fonction publique territoriale.92 At the end of their initial training period, set by the specific statutes of the job categories, students are entered on a list of suitable candidates drawn up in application of the provisions of paragraph 1 and published in the Official Journal;93 they are then appointed to the posts filled. Hospital civil service competitions give rise to the drawing up of a list ranking in order of merit the candidates declared suitable by the selection board.94

The procedure for recruiting contract staff must also comply with certain legal requirements. The recruitment of contract staff to fill permanent posts is decided following a procedure that guarantees equal access to public posts. The competent authority publishes the vacancy and the creation of these posts under the same conditions as the recruitment procedure for civil servants.95

In addition, it is specified that

no measure concerning, in particular, recruitment, tenure, remuneration, training, assessment of professional value, discipline, promotion, assignment or transfer may be taken in respect of a public servant taking into consideration the fact that: 1) he has been subjected to or refused to be subjected to conduct contrary to the principles set out in Articles L. 131-1, L. 131-2 and L. 131- 3; 2) They have lodged an appeal with a hierarchical superior or taken legal action to ensure that these principles are respected; 3) Or they have witnessed conduct contrary to these principles or reported it….96

In the performance of their duties, no distinction may be made between civil servants on the grounds of gender.97

However, the Order of 2021 on the General Civil Service Code provides that “separate recruitment for women or men may, exceptionally, be provided for when membership of one sex or the other is a determining condition for the performance of the duties”.98 In such cases, the list of bodies for which separate recruitment for men or women may be organized is drawn up after consultation with the Conseil supérieur de la fonction publique de l’État and the relevant social committees. The procedures for these separate recruitments are set after consultation with the relevant social committee. The terms and conditions of the physical tests and the separate ratings according to the sex of the candidates referred to in Article L. 325-16 are set after consultation with the competent social committee.99

1.5.3 Progression in the Profession

In France, in the healthcare sector, career development follows salary development, both in terms of how it is determined and how much it is paid. A reference coefficient is set for each group of professions in order to determine the basic salary under the collective bargaining agreement, to which may be added any technical supplements linked to the employee’s supervisory role or qualifications. A promotion allowance and a seniority bonus may be added to this salary, which may be increased by the technicality supplement.

Generally speaking, career progression or the employee’s development in the profession is linked to the gradual acquisition of technical skills and competencies through seniority in the profession. Seniority refers to periods of actual or equivalent work. For example, the national collective agreement for private not-for-profit hospital, care, cure and nursing establishments100 provides for 5 levels in its classification grid: junior, confirmed, senior and expert employees.

The entry level is for managers with no experience in the job and up to and including the 3rd year in the job. The junior step is for executives with between 4 and 8 years’ experience in the job. The senior step is for executives with between 9 and 13 years’ experience in the job. The senior step is for managers with experience in the job between 14 years and 19 years inclusive. The expert level is for managers with 20 or more years’ experience in the job.

Once they have been recruited, managers are automatically promoted to the next step in their profession. The length of the steps may be reduced in order to anticipate the transition to the next step. Any such advance must respect the principle of equal treatment or, failing that, be based on objective and relevant factors.

The technical supplement is calculated on the basis of the reference coefficient plus any additional remuneration linked to management, qualifications and/or the job itself. It is determined as follows:

Entry-level executive: no top-up. Junior executive: 5% of base salary converted into points. Senior manager: 10% of base salary converted into points. Senior executive: 14% of base salary converted into points. Expert manager: 17% of base salary converted into points.

In addition, a career allowance (as referred to in article 8 of amendment no. 2002-02 of 25 March 2002) may be provided for. In any event, taking into account the duration of their work and their seniority in the company, the remuneration of part-time employees is proportional to that of employees who, with the same qualifications, hold an equivalent full-time job in the establishment or company.

We also note that

career prospects and vertical mobility for care assistants, particularly towards nursing posts, remain limited, as they are subject to training at a nursing training institute (IFSI) and to passing the entrance examination.101

In the civil service, there are two aspects that determine the career path of care workers. The first is gender balance in appointments. According to the General Civil Service Code, at least 40% of each sex must be appointed to public posts in each calendar year: 1) Senior posts; 2) Other State management posts; 3) Management posts in State public establishments; 4) Management posts in the regions, départements, municipalities and public establishments for inter-municipal cooperation with more than 40,000 inhabitants and the Centre national de la fonction publique territoriale; 5) Management posts in the hospital civil service. The number of persons of each sex to be appointed in application of this rule is rounded down to the nearest whole number. This obligation does not apply to renewals in the same post or to appointments to the same type of post.102

The second aspect concerns the balanced advancement of men and women in the profession. Firstly, advancement to a higher step is granted automatically and continuously from one step to the next on the basis of seniority. Civil servants are assessed by a grading system,103 which also contributes to their advancement through the ranks. The grade is the title that confers on its holder the right to occupy one of the jobs that correspond to it.104 The hierarchy of grades in each body or employment category, the number of steps in each grade, the rules for advancement to a higher step and promotion to a higher grade are set out in the specific statutes.105 Under penalty of nullity106 of the public servant’s appointment,

the grades of each body or employment framework are accessible by means of competition, internal promotion or advancement, under the conditions laid down by the specific statutes. They may, where appropriate, be accessible by direct integration or by external promotion.107

Similarly, under civil service law,

promotion to a higher grade shall take account of the respective situations of women and men in the bodies, job categories and grades concerned, within the framework of the management guidelines laid down […].108

The Government must submit a report to the Common Council for the Civil Service on the measures implemented to ensure professional equality between women and men. This annual report, the implementation procedures for which are defined by decree, includes data on recruitment, the number of women on juries, training, working hours, professional promotion, working conditions, pay and work-life balance. This report is then submitted to Parliament.109

In addition, public servants, like candidates for public office, are also protected against harassment. Thus, no measure concerning recruitment, tenure, remuneration, training, assessment of professional merit, discipline, promotion, assignment or transfer may be taken in respect of a civil servant on the grounds that the latter: 1) Has been subjected to or refused to be subjected to acts of sexual harassment as referred to in article L. 133-1, including, in the case mentioned in 1) of this article, if the comments or behavior have not been repeated, or the acts of psychological harassment mentioned in article L. 133-2; 2) Has lodged an appeal with a hierarchical superior or taken legal action to put an end to these acts or acts; 3) Or because he has witnessed such acts or acts or has reported.110

1.8.1 Recruitment

The choice of recruitment is a matter for the employer. However, the employer must comply with a certain number of rules or general principles of labor law and civil service law.116 Article L. 1142-1 of the French Labor Code sets out the prohibitions on job offers and recruitment:

No one may:1) Mentioning or causing to be mentioned in a job advertisement the sex or marital status of the candidate sought. This prohibition applies to all forms of advertising relating to recruitment, regardless of the nature of the employment contract envisaged.2) Refusing to hire, transferring, terminating or refusing to renew an employee’s employment contract on the grounds of sex, marital status or pregnancy on the basis of different selection criteria according to sex, marital status or pregnancy.3) Take any measure on the basis of sex or pregnancy, in particular with regard to pay, training, assignment, qualification, classification, professional promotion or transfer.

When it comes to recruitment, collective agreements usually refer in extenso to the legal prohibition and the principle that the criteria used for recruitment must be strictly based on the professional skills and qualifications of the candidates for recruitment.117 Collective bargaining agreements then go into more detail on the job offer (1.8.1.1), recruitment conditions (1.8.1.2) and stereotypes (1.8.1.3).

1.8.2 Vocational Training, Job Classification and Gender

Job classification is one of the traditional subjects of collective bargaining at industry level in France. The industry agreements adopt classification grids, the purpose of which is to identify jobs in the sector by formalizing their description, to support employees in their professional development, to establish a hierarchy of jobs based on their content, to facilitate intra-sector mobility and professional equality as part of forward-looking management of jobs and skills initiated at national level and implemented at local level. None of the collective bargaining agreements applicable in the sector include gendered criteria in job classification.

Some partners see vocational training as a lever for ensuring equality in the workplace, and are working on measures to remedy the inequalities observed. For example, the NCC for individual employers and home based s of 2021 stipulates that since vocational training is an essential lever for ensuring equality between women and men in access to employment and in their career paths, employees must have equal access to all these schemes.119

In the 2010 NCC for the home help, support, care and services branch, it is expressly stipulated that “training initiatives, both for individual professional development and to adapt to changes in the structure, must benefit both sexes, whether they are full-time or part-time employees, and regardless of their family situation”. Two specific objectives are being pursued. On the one hand, the sector’s structures undertake to maintain and develop, through training, the conditions guaranteeing respect for parity in the exercise of positions of responsibility. Secondly, in order to facilitate the return to work after an absence of more than 1 year due to parental leave, organizations are invited to develop the practice of interviews. For example,

after an absence of this nature, if it is necessary to update knowledge, this can be the subject of a training period. Companies must anticipate the need for employees to return to work and provide the necessary support.120

The period of absence of employees on maternity leave, adoption leave, parental presence leave or parental education leave is fully taken into account when calculating their rights under the Individual Right to Training (DIF).

In the agreement of 12 June 2018 on the quality of life at work and professional equality in the NCC for private hospitals of 2002, the social partners undertake to ensure: “– that the training courses on offer, and in particular the opportunities for access to certification, are aimed at both female- and male-dominated professions. Particular care will be taken to ensure that both sexes have balanced access to training leading to certification, regardless of working hours, so as to guarantee career development prospects for all employees, in the light of their needs and those of the company, with a view to strengthening gender diversity:

Organize the training (place and time) in such a way as to enable everyone to take part, particularly employees with special family constraints. In this way, companies will be able to measure any gaps in access to training. Encourage the training of management and human resources professionals or those in charge of recruitment, as well as managers, in the implementation of measures conducive to professional equality (in terms of recruitment, management, etc.). These training courses must in particular comply with the guidelines that the Conseil Supérieur de l’Egalité Professionnelle (CSEP) (Higher Council for Professional Equality) may formulate in this area”. As in most of the NCCs, the measurement indicators will have to take into account the number of employees, broken down by gender, who are on training, full-time, part-time and/or working night shifts.

1.8.3 Promotion, Career Development and Gender

The NCC for individual employers and home based employment of 2021 makes no provision for promotion, career development or gender, no doubt due to the fact that employers are private individuals, not companies, and therefore have only one employee.121 As for the 2012 NCC of personal services companies, it merely stipulates that employees must not be discriminated against in the course of their careers and in their career development within the branch, whether in terms of access to training or promotion, pay or professional mobility.

On the other hand, two agreements in the sector devote a fairly long section to this issue, in line with the signatories’ concern for gender diversity in the workplace, which is undoubtedly the central problem in the professions covered in this sector, characterized by a very clear gender polarity between operational jobs and managerial and responsible positions. Gender equality in employment means that women and men should have the same opportunities for career development and access to positions of responsibility.

Accordingly, the social partners of the 2010 NCC for the home help, supports, care and services reiterate their desire to eliminate any factor likely to prevent women and men from gaining access to managerial positions and positions of responsibility. They invite companies to take all necessary measures to achieve this objective, in particular:

Examine the criteria used to define jobs that would exclude women or men from accessing them, even though they have all the skills required to do so. In particular, they will ensure that job titles do not lead to any gender discrimination. To ensure that women and men do not suffer any delay in their career progression as a result of periods of contract suspension such as maternity, adoption or parental leave. Support measures are taken before, during and on return from parental leave. To seek ways of enabling employees who so wish to maintain a link with them throughout the period of maternity leave or full-time parental leave, in order to facilitate the employee’s return to work at the end of his or her absence. Ensure that the way in which work is organized within the same function does not constitute a factor of discrimination in the allocation of tasks and opportunities for promotion. Be particularly careful to ensure that any adjustments to working hours that may have been made, in particular to facilitate the reconciliation of private and family life, do not stand in the way of career development proposals. Offer a specific interview after parental leave of at least 1 year to all employees concerned, in particular when they return to their jobs or to a job that is at least equivalent. Undertake to correct any discriminatory treatment; the structures undertake to correct it.

Furthermore, the sector’s social partners consider that the choice of part-time work or any reorganization of working hours should not act as a brake on career development. Furthermore, when full-time positions become available, priority will be given to offering them to part-time employees who have the required qualifications and skills and who so request.122

The 2010 NCC for the home help, support, care and services sets up a communication mechanism at sector level to support the contractual job gender balance policy, with the aim of “developing a strong communication campaign on the image and representation of professions”, with the aim of “reducing the imbalance between men and women”. The NCC encourages the companies falling within its scope to also put in place internal and external communication to promote gender diversity and professional equality, highlighting the human, economic and social issues involved. The NCC recommends awareness-raising initiatives for “all local managers, in particular to avoid any discriminatory behavior”.123 The NCC draws companies’ attention to the need to ensure that their external communications with care recipients “do not contain any discriminatory wording”.124 Rider 59 of 2023 to the NCC adds that awareness-raising work can be carried out with the CSE when it exists or with the referent appointed within it, as well as with employees “to bring out concrete reflections on the obstacles to professional equality (for example, this could take the form of a questionnaire, one or more working groups, or be the subject of a discussion during a meeting on employees’ right of expression) in order to bring out appropriate” and, above all, shared corrective measures.

The rider of 12 June 2018 on the quality of life at work and professional equality of the NCC for private hospitals of 2002 adopts measures to encourage professional promotion and/or access to responsibilities:

In particular by ensuring that women and men have equal access to information about internal mobility opportunities for higher-level jobs and for jobs in all of the company’s business lines. The aim is to combat the “glass ceiling” and “glass partition” effects, while promoting professional diversity. Professional training will be used as much as necessary to facilitate these mobility opportunities. By taking into account training courses taken and/or certifications acquired at the end of a training course or as part of a validation of acquired experience (VAE), at the initiative of both employees and employers. making the most of the professional interview, introduced by the Act of 5 March 2014, to identify solutions for career progression and encourage employees to take on more responsibility.

Specific training courses to prepare for competitive examinations and/or diplomas leading to certification must be equally accessible to women and men, and to both full-time and part-time employees. In addition, employers undertake to ensure that, if necessary, following a career break of at least one year, women and men will be offered training to help them adapt to their previous or new job, or measures to help them return to work, so that they can resume their duties under the best possible conditions.

In order to promote equitable career development between women and men, the sector undertakes to avoid any negative impact on the career development of employees of companies who have taken parental leave (maternity, adoption, paternity, childcare, partial or total parental education leave), to identify the obstacles to career development for women and to promote the main levers that encourage career development for women. Indicators must take into account: the number of employees, by gender, who have benefited from preparation for a competitive examination and/or certifying diplomas, the percentage of women and men promoted from one year to the next by classification/professional category, the proportion of transfers away from home among the proposed transfers.

1.8.4 Means and Scope for Combating Gender Discrimination

Two original initiatives to combat gender discrimination have been taken by the social partners in the care sector. The first was to extend the scope of the measures to small structures with fewer than 50 employees, and the second was to set up an observatory in one of the branches.

1.8.5 Bullying, Sexual Harassment, Violence and Gender

With two exceptions, harassment and violence are relatively little understood by NCCs in the care sector in general.

The agreement of 12 June 2018 on quality of life at work and professional equality in the NCC for private hospitals of 2002 devotes 2 articles to this. The legal obligations of the employer are recalled and the recommendations of the ANI of 20 March 2010 are repeated. The signatories of the 2018 agreement suggest that awareness-raising, communication, information and training initiatives be undertaken for prevention purposes. It is suggested that companies draw up a reference charter after consultation with the CSE, include a provision on this in the internal regulations, and put in place “an appropriate procedure for identifying, understanding and dealing with harassment and violence in the workplace”, which could be based on discretion to protect the dignity and privacy of each individual, making information anonymous to parties not involved in the case, an investigation to follow up complaints, a mediation procedure, disciplinary action for false accusations, and external assistance including occupational health services.

Rider 59 of 2023 to the NCC for the home help, support, care and services branch of 2010 states that employers must prevent moral and sexual harassment likely to occur in the course of work, including in the homes of beneficiaries, by relying on a range of players. It recommends displaying the texts relating to the fight against moral and sexual harassment. In the event of a report, the employer must refer the matter to occupational medicine and take the necessary action by setting up an alert and investigation procedure, and take all appropriate sanctions in the event of proven harassment. The rider states that the employee will be offered support, such as psychological counselling through the platform set up by the industry.

1.12.1 Night Work and Family and Social Responsibilities

The NCC for private not-for-profit hospital and nursing establishments of 1951 (not extended) stipulates that measures may be taken by establishments and services to facilitate the coordination of night work by night workers with the exercise of family and social responsibilities. When night work is incompatible with the following imperative family obligations: looking after a child, caring for a dependent person, the employee may request to be assigned to a day shift, provided that a position compatible with the employee’s professional qualifications is available. For the same reasons, an employee working during the day may refuse an offer of night work, without this refusal constituting misconduct or grounds for dismissal.

The 2012 NCC for personal services companies stipulates that, by virtue of the protection of social and family life,

an employee working during the day may refuse an offer of night work without this refusal constituting misconduct or grounds for dismissal. For the same reasons, any night worker may ask to be assigned to a day shift because of compelling family obligations. The employer must respond within a maximum of one month to any request for a change of assignment from a night shift to a day shift. As stipulated by law, the NCC must provide for transport arrangements, which is a point of attention in the case of work carried out at the beneficiary’s home. In order to facilitate the transport of night workers, work schedules are organized in such a way as to enable employees who do not live at home or who do not have a motorized vehicle to use public transport. Exceptionally, and only with the employer’s authorization, a taxi, the cost of which will be borne by the employer, may be requested by an employee who no longer has any means of transport to return home.

The NCC for home help, support, care and services of 2010 (extended) stipulates measures designed to make it easier for employees to combine night work with family and social responsibilities. Thus, in accordance with legal and regulatory provisions, when night work is incompatible with imperative family obligations (childcare, care of dependent persons), an employee working during the day may refuse an offer of night work without this refusal constituting misconduct or grounds for dismissal. Similarly, because of the pressing family obligations set out above, a night worker may request to be assigned to a day shift, provided that a position compatible with his or her professional qualifications is available. In order to enable each employee to reconcile family and professional life, a schedule is drawn up and given to each employee, indicating the weeks when he or she may be required to work at night. Rider 59 of 2023 on equality to the NCC of the home help, support, care and services branch of 2010 deals with working conditions and especially work-life balance. The signatories ask companies to take better account of workers’ personal and family constraints, to study the organization of working hours for employees with particular personal or family responsibilities, and to study the introduction of schemes to contribute to childcare costs. To this end, the agreement recommends the following indicators: total number of employees likely to benefit from sick leave for children, by gender, number of days of sick leave granted, by gender, number of night workers broken down by profession, by working hours (full-time/part-time) and by gender.

1.12.2 The Societal Approach to Work-Life Balance

The agreement of 12 June 2018 on quality of life at work and professional equality in the NCC on private hospitals of 2002 includes very pragmatic clauses for reconciling work/family/personal life on the organization of work. They recommend that companies:

Encourage the introduction of suitable meeting times, in particular to enable night workers to take part or to plan journeys in advance, facilitate the transition to day work, where this is envisaged, by measures to adapt the position, organize the work, in particular and as a minimum by respecting the notice periods for the management and modification of schedules, to improve working conditions and encourage employees working at night to combine their work with family responsibilities, to encourage and negotiate, through company agreements in companies with more than 50 employees, consideration of the impact of information and communication technologies in the management of working time, and in particular the right to disconnect, in order to ensure that their use respects employees’ personal lives and rest periods. Initiate discussions on the introduction of a time charter in companies with fewer than 50 employees or where company negotiations have failed. Intervene, negotiate, enter into agreements or contracts with the various local stakeholders who have an impact on the company’s environment (public transport timetables, childcare, school timetables, social landlords, etc.). Encourage teleworking, within the framework of legal provisions and during the annual negotiations on the quality of life at work, as long as this is compatible with the employee’s qualifications and the organization of his or her activity, while respecting the right to disconnect. Organise and innovate services and adaptations in-house or through inter-company pooling to facilitate this reconciliation (company crèches, assistance with health expenses, company concierge services, etc.).

1.15.1 Reducing Working Hours for Pregnant Women

Certain agreements, outside of any legal obligation, provide for measures to reduce the effective working hours of pregnant women. This is the case of the NCC for private not-for-profit hospital and nursing establishment (not extended) which states that “pregnant women, from the first day of the 3e month of pregnancy, will benefit from a reduction of 5/35 of their contractual working hours. This reduction will be spread over their working days”. This is also the case for the NCC for the home help, support, care and services of 21 May 2010 (extended), which envisages “a reduction of 1 hour per day worked without loss of pay at the end of the 3e month of medically certified pregnancy, for full-time employees”. This measure applies to part-time employees on a pro rata basis. Subject to agreement between the employee and her employer, this reduction may be accumulated and taken in the form of a half-day or full day’s rest. The same NCC stipulates minimum daily and weekly rest periods, as well as the daily breaks provided for in the Labour Code. It specifies that the lunch break of at least 1/2 hour “may under no circumstances include travel time for work”. As for the NCC of establishments and services fort the maladjusted and disabled persons, Title IV (not extended), it stipulates that pregnant women (working full-time or part-time) benefit from a 10% reduction in their working week.

In the agreement of 12 June 2018 on quality of life at work and professional equality in the NCC for private hospitals of 2002, the social partners and employers undertake to promote the improvement of working conditions for pregnant employees in companies by implementing: adaptation to the workstation and/or reorganization of working hours in conjunction with the occupational physician if the pregnant employee’s state of health so requires, communication on the pregnant employee’s right to benefit from a 10% reduction in daily working hours with continued remuneration from the end of the 2e month of pregnancy, under the conditions set out in the national collective agreement for private hospitals of 18 April 2002. The same agreement includes clauses on breastfeeding, recalling the legal obligation154 of employers with more than 100 employees to set up breastfeeding facilities in or near their establishments. In accordance with article L. 1225-30 of the French Labor Code, for a period of one year from the date of birth, an employee who is breastfeeding her child is entitled to one hour’s breastfeeding time per day during working hours. Taking into account the specific time constraints in the professional field and to encourage the employee to breastfeed in the morning or evening, breastfeeding periods will be divided into one period of one hour or two periods of 30 minutes, which will be determined by agreement between the employee and the employer; failing agreement, this hour will be divided into two periods of 30 minutes, which will be placed in a way that generates three work sequences; these breastfeeding periods are paid.

1.15.2 Night Work and Pregnancy

The NCC for private hospitals of 2002 (extended) devotes a very long article to night work, the use of which is justified by the need to ensure continuity of service.155 It should be emphasized that the agreement in this branch incorporates certain legal provisions as they stand (definitions, medical surveillance, right to refuse night work on the grounds of incompatibility with family responsibilities, break times, transport conditions, change of assignment for pregnant women) and in other respects has appropriated the possibility offered by the law of derogating in peius, going so far as to authorize certain aspects of night work to be organized at establishment level either by collective bargaining or, failing that, by referendum.

The NCC for private not-for-profit hospital and nursing establishment of 1951 (not extended) establishes a series of protections in various situations. For example, it recognizes the right of any employee who is medically pregnant or who has given birth to be assigned to a day job for the duration of her pregnancy and during the period of statutory postnatal leave, if she waives this, if she so requests. If the employer is unable to offer a day job, he must inform the employee or the company doctor, as the case may be, in writing of the reasons for not reassigning the employee. The employee’s employment contract is then suspended until the start of her statutory maternity leave.

The 2012 NCC for personal services companies incorporates the legal provisions on the rights of pregnant women in relation to night work and adds, in view of the specific features of the sector and its work organization, that if the employer is unable to offer another job, it shall inform the employee and the occupational physician in writing of the reasons preventing the employee from being reclassified as a day worker. The employee’s employment contract is then suspended until the date of commencement of the statutory maternity leave and possibly during the additional period following the end of this leave in application of the above provisions. During this period, regardless of the employee’s seniority, she will benefit from guaranteed remuneration consisting of a daily allowance paid by the social security system and additional remuneration payable by the employer, in accordance with the same terms and conditions as those set out in the inter-professional agreement of 10 December 1977 appended to the law on monthly pay of 19 January 1978.

1.15.3 Leave, Parenthood, Family Responsibilities and Gender

In the agreement of 12 June 2018 on the quality of life at work and professional equality in the NCC for private hospitals of 2002, the social partners ask companies in the branch to promote, particularly among men, paternity and childcare leave and the terms and conditions of the shared childcare benefit received during parental childcare leave.

1.22.1 International Human Rights Law on Discrimination and Equality

The first is the 1948 Universal Declaration of Human Rights. Then, in chronological order, ILO Convention no. 100 of 1951 concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, ratified by France in 1952. Self-executing, its acceptance into French law was slow, however, because it clashed with the French conception of equality law. The first provisions were incorporated into the Criminal Code by the Act of 1st July 1972.174 But article 416 of the Penal Code did not define the concept of discrimination. It merely provided for sanctions against any person who refused to supply a good or service, refused to hire someone or dismissed someone on the grounds of their origin. This trend was accentuated in 1975, when other forms of discrimination based on sex or family status were criminalized, etc.175

In the 1980s, France ratified ILO Convention no. 111 concerning Discrimination in Respect of Employment and Occupation176 and ILO Convention no. 156 concerning Workers with Family Responsibilities.177 It has also ratified the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).178

It was not until 1982, therefore, that French labor law began to take discrimination more widely into consideration. Article L. 122-45 of the Labor Code (now art. L. 1132-1) was gradually amended and supplemented to become the hard core of anti-discrimination legislation in employment relationships. The nullity of discriminatory provisions and acts has gradually become the sanction that ensures the effectiveness of this legislation.

The 1951 European Convention for the Protection of Human Rights and Fundamental Freedoms was ratified in 1974.179 It obliges States Parties to recognize the rights and freedoms it enshrines “for everyone within their jurisdiction”, whether a foreigner or a national, and whether or not a national of one of the signatory States. Article 14 stipulates that the enjoyment of the rights and freedoms recognized in this Convention

shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

In addition, the 1961 Social Charter of the Council of Europe180 was revised in 1996 and signed by France on 3 May 1996.181

1.22.2 European Union Law on Discrimination and Equality

Two provisions were enshrined in primary law: the prohibition of discrimination on grounds of nationality182 and the prohibition of discrimination between male and female workers as regards pay.183 These prohibitions of principle form part of the foundations of the Community.184

The articles of the Treaty were supplemented by directives. Article 119 only referred to equal pay for male and female workers “for equal work”. Faced with the difficulties associated with the scope of this concept, which was more restrictive than that referred to in ILO Convention 100, and with the conflicts it gave rise to, a Community social action program was drawn up concerning, in particular, equality between men and women.185 An initial directive based on Article 100 of the Treaty extended the scope of equal pay to the concept of “equal value”: this was Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women.186 A second directive, 76/207/EEC of 9 February 1976, based on Article 235 of the Treaty, on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, announced directives on social security. One concerned statutory social security schemes,187 the other occupational social security schemes.188

Since the Maastricht Treaty, directives have been adopted either on the basis of Article 118a189 or on the basis of the Agreement on Social Policy, itself annexed to the Maastricht Treaty.190 In 1997, Directive 97/80/EC on proof in cases of discrimination based on sex summarized the case law of the ECJ in this area.

These various provisions resulting from the Treaty or secondary legislation have been constructively interpreted by the Court of Justice of the European Communities (ECJ).191 Since its judgment of 17 December 1970 (Internationale Handelsgesellschaft), the Court has stated that fundamental rights form part of the general principles of law whose observance it is the Court’s task to ensure.192

As Marie-Thérèse Lanquetin points out,

the strength of Community law lies first and foremost in its primacy over national law. But even beyond the transposition of Community principles and standards, the national legal order is required to contribute to the implementation of Community law, since transposition itself is insufficient to satisfy the requirements of full application.193

Moreover, in the case law of the CJEU, the two conceptions of equality, based on generality and differentiation, are not in opposition, but are combined. Emphasis is placed on the link between the principle of non-discrimination and the fundamental principle of equality. For the Court,

the prohibition of discrimination is merely the specific expression of the general principle of equality which forms part of the fundamental principles of Community law; the principle requires that comparable situations must not be treated differently unless a difference is objectively justified.194

Parallel developments in European Union law and national non-discrimination law are giving rise to tensions. This sometimes takes the form of formal notices issued by the European Commission criticizing France for failing to transpose directives correctly. For example, during the parliamentary debates leading up to the adoption of the Act of 27 May 2008 containing various provisions adapting to Community law, reservations were expressed in the Senate. The bill’s rapporteur felt that several provisions of the anti-discrimination directives were difficult to reconcile with certain fundamental rights principles of French law and entailed a risk of communitarianism.

This tension has continued in the jurisprudence.195 For example, the national construction around the principle of “equal pay for equal work” may have seemed to weaken the fight against certain forms of discrimination, such as discrimination between men and women in terms of pay. Pursuing its construction around the national principle of equality, the Court of Cassation has even affirmed the existence of a principle of equal treatment in labour law, which has not been effective in combating discrimination.196

In French law, the fight against discrimination began in the criminal field, but the number of cases was and remains low, as Evelyne Serverin already noted in 1994.197 Until recently, there was very little litigation relating to discrimination before the civil courts, particularly in relation to equal pay for men and women. The shift in the burden of proof has changed the outlook. The issue of proof is not simply a procedural rule, but a substantive one. As a result, there has been an increase in civil litigation and a corresponding stagnation in criminal litigation.198

The real issue is the existence and mobilization of the players themselves. Associations and trade unions199 deal with some discrimination, but not all. In France, the Haute autorité de lutte contre les discriminations et pour l’égalité (Halde), created in 2004,200 plays an important role. This independent administrative authority has succeeded in raising the profile of the fight against discrimination and has led to a significant increase in the number of appeals based on the Anti-Discrimination Act of 16 November 2001.201 Between 2005 and 2010, the number of complaints registered by the Halde rose steadily, from 1,410 to 12,467 over this period.202

The Act of 16 November 2001, which transposed Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, was not enough to convince victims of discrimination to lodge complaints; the HALDE has helped considerably in this respect, both by providing information on all forms of discrimination and by the assistance it provides to victims. In 2011, the HALDE’s remit was incorporated into the Office of the Defender of Rights.203 Since 11 December 2016, the role of this administrative body has been to direct to the competent authorities any person reporting a whistleblowing incident under the conditions laid down by law and to monitor the rights and freedoms of that person (protection of whistleblowers). More specifically, in the fight against discrimination, the Human Rights Defender has considerable resources at his disposal. Anyone who believes they have been the victim of discrimination may submit a complaint in writing to the Human Rights Defender, specifying the facts relied on in support of their claim and providing all relevant details.204 In addition to the person who considers him/herself wronged or his/her beneficiaries, the Defender of Human Rights (Défenseur des droits) may be approached by political authorities (deputies, senators, French representatives in the European Parliament) as well as by any association that has been duly registered for at least 5 years at the date of the facts, and whose articles of association propose to combat discrimination or assist victims of discrimination.205 In addition, the Human Rights Defender may also take action on his own initiative in cases of direct or indirect discrimination of which he is aware, or may be approached by the beneficiaries of the person whose rights and freedoms are in question. To this end, the Defender of Rights has a service for reporting and assisting victims of discrimination on any grounds and in any field, including those committed in employment relations, called the anti-discrimination platform.

International texts are much more inclusive than national texts, and the lists of discriminatory grounds are not exhaustive and/or use particularly encompassing criteria (“any other opinion”, “any other situation”).206 Some lists clearly highlight criteria in formal terms, as is the case with Convention no. 111 of the International Labour Organization (ILO), which adds to the first list of grounds set out in its Article 1 a), including “race, color, sex, religion, political opinion, national extraction or social origin”, “any other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation, which may be specified”.207 In contrast, the lists of discriminatory grounds in domestic law are systematically exhaustive and do not formally show any hierarchy between the criteria.

2.2.1 Entry and Work Conditions

In France, immigration law came into being with the Ordinance of 2 November 1945. Under the aegis of the Ministry of Labor, the State created the National Immigration Office (Office national de l’immigration -ONI), which was responsible for the “recruitment” and “introduction” of migrant workers needed to rebuild the country.230 The ordinance set out the conditions for the entry of foreign nationals (starting with the requirement for workers to have a work contract or permit), listed the various residence permits, set out the penalties for illegal residence (including for helpers), laid down the rules for deportation and provided for the possibility of acquiring French nationality.

The reception of refugees in France is governed by the law of 25 July 1952 on the right of asylum, which sets out the conditions for applying the Geneva Convention (27 July 1951) ratified by France.

In 1974, President Giscard d’Estaing decided to suspend labor immigration. However, family reunification and applications for asylum continued to be the gateways to France. Since then, immigration has become a central issue in public debate and in political promises and programs in France. Both left-wing and right-wing governments are converging on tougher conditions for entering and staying in France.

This law was first codified in two stages the order of 24 November 2004 created the Code for the entry and residence of foreign nationals and the right of asylum (Code de l’entrée et du séjour des étrangers et du droit d’asile -Ceseda) and brought together the provisions on immigration and asylum. The Ceseda repealed and replaced Order no. 45-2659 of 2 November 1945 on the conditions of entry and residence of foreign nationals in France. It came into force on 1st March 2005. The regulatory part was published on 15 November 2006. A new codification came into force on 1st May 2021. Legislators are legislating in droves, at the risk of “overloading”: the press reports that no fewer than 29 laws were passed between 1980 and 2022. A law is passed every 17 months, and the last one to be adopted in December 2023 is the subject of an appeal for unconstitutionality.

With regard to the employment of non-EU foreign nationals in France, the main legal source is the combined provisions of Law no. 2018-778 of 10 September 2018 for controlled immigration, an effective right of asylum and successful integration, Decree no. 2020-1734 and Order no. 2020-1733 of 16 December 2020 amending the regulatory part of the Ceseda (code governing the entry and residence of foreign nationals and the right of asyl – Ceseda), the Labor Code 231 and the Social Security.232 This right is characterized by a number of reasons for entry and residence, each corresponding to a specific legal regime (students, refugees, stateless persons, employees, seconded workers).

With regard to access to employment for foreign nationals, Article L. 5221-1 of the Labor Code establishes the principle that foreign nationals must hold an official document (passports and visas) and a work permit.233 To this end, the system of residence and work permits for non-EU workers is set out in Articles L. 313-7-6 and L. 313-20-4 ff. of the Ceseda. Two general observations should be made. Firstly, French law compartmentalizes the legal regimes for residence, which has repercussions on the conditions for access to employment. Secondly, French law applies the general rule of priority to national/Community employment based on the opposability of the employment situation in the profession and in a given region, which restricts access to the labor market to foreigners and consequently to obtaining a work permit (2.2.1.1). In addition, even before the Second World War, France had a set of regulations prohibiting foreigners from certain jobs. These regulations were partly reformed under pressure from Community law and cannot therefore be applied to nationals of Member States. However, they continue to apply to third-country nationals (2.2.1.2).

2.2.2 Overview of French Legislation on the Rights and Duties of Non-EU Foreign Nationals Forms of Employment and Application of Employment Legislation to Foreign Nationals in All Sectors of Activity (no Specific Provisions for Workers in the Care Sector)

In the performance of their employment contracts, foreign workers are subject to the same rules as French workers in terms of working hours, overtime, public holidays, remuneration, application of collective agreements, profit-sharing and supplementary pensions. The same applies to collective bargaining law.244 The following section describes how this principle of equality is applied to various aspects of the employment relationship and social risk cover.

Temporary work and residence in France.

Temporary work regulations apply to foreign workers. Since the law of 20 November 2007, a temporary employment contract may be submitted in support of an application to enter France by a foreign worker who is a first-time immigrant.245

Part-time work.

The regulations governing part-time work apply to foreign nationals without restriction. With regard to working hours, any change in the distribution of working hours between the days of the week or the weeks of the month must be notified to the employee, subject to a notice period.246 Failure to comply with this notice period will result in the part-time contract being reclassified as a full-time contract, even if the employee is a foreign student holding a temporary residence permit. In order to avoid this requalification, the employer may not invoke the argument that, as a foreign student may not carry out a salaried activity on an ancillary basis in excess of 964 hours per year, the employer’s failure to comply with the notice period may not result in the employment contract being requalified. Since it was found that the working hours varied constantly and that the agreed working hours were frequently exceeded, without the employer proving compliance with the contractual notice period, it must be considered that, given the proven uncertainty of his working hours, the foreign employee was obliged to remain permanently at the employer’s disposal.247

Salary rights.

The legal minimum wage (SMIC) is set by decree and applies to all workers regardless of their administrative status (legal or illegal in the case of foreign workers).248

Vocational training rights.

The principle of equal treatment of nationals and foreigners applies in the area of vocational training. The right to training is linked to the status of employee. Foreign nationals, once they have been authorized to work, can therefore benefit from this right, which applies to all workers.249

Right to leave to acquire nationality.

All employees are entitled to half a day’s unpaid leave, with justification, to enable them to attend their French citizenship ceremony. This leave cannot be refused by the employer if it is requested by the employee.250

Elections to the Conseils des prud’hommes (industrial tribunal).

Foreign workers are eligible to vote for the appointment of labor tribunal councilors. However, they are not eligible; only workers of French nationality are eligible.251 As this is a judicial activity, it falls within the sphere of the State’s sovereign power and is therefore closed to any person of foreign nationality.

Exercising trade union functions and non-renewal of work permit.

A foreign employee delegate, who is notified by the employer that his employment contract can no longer continue due to the non-renewal of his provisional work permit, is “outside the scope” of article L. 2421-3 of the Labor Code relating to the dismissal of employee delegates (the employer therefore does not have to comply with the special dismissal procedure: authorization from the labor inspector, etc.).252

Social protection rights of foreign workers.

Social security law is a state-based right subject to the principle of territoriality for liability and entitlement to benefits, operating on the principle of equality and non-discrimination.253 Access to social protection for foreign workers from outside the EU is generally conditional on residence in France, legal residence and, in the case of non-contributory social security benefits, nationality and length of service. Foreign nationals must therefore have regular and stable residence in order to be affiliated to a social security scheme and receive social security benefits.

Subject to the general scheme.

Traditionally, the provisions of Articles L. 8252-1 and L. 8252-2 of the French Labor Code treat foreign employees “from the date of their recruitment” as if they were duly hired employees with regard to the employer’s obligations.

Legally resident foreign workers are subject to the general scheme under the same conditions as nationals. To qualify for benefits, foreign nationals must be resident in France, subject to more favorable international agreements.

The required insurance periods must have been completed in France, unless bilateral agreements provide for the aggregation of periods completed in France and in the country of origin. In any event, if the foreign worker fulfils the conditions required for the award of a benefit, refusal to award this benefit on the basis of the insured person’s nationality alone is not justified under the European Convention on Human Rights.254

Thus, the employee benefits from the application of the provisions relating to pre- and post-natal employment bans and breastfeeding, the provisions relating to working hours: working time, rest and holidays, the taking into account of seniority in the company, training rights, payment of salary and related benefits and various indemnities in the event of termination of the employment relationship.

Entitlement to family benefits.

In principle, foreign nationals are entitled to family benefits, but under different conditions depending on whether or not the family is resident in France. Other conditions relate to residence in France of the recipient and the child; the condition of effective and permanent responsibility for the child; the condition of lawful residence and the condition relating to the entry into France of the foreign child. However, workers temporarily seconded to France to work and their dependents are not entitled to French family benefits.255

This last condition was referred to the Human rights Defender. In its Deliberation no. 2007-247 of 1st October 2007 on the origin/regulation of public services, the administrative authority considered that

the claimant, of Algerian nationality and legally resident in France with a ten-year residence permit, has been refused payment of family benefits for his three children who entered the country outside the family reunification procedure. Following the example of all the national and international courts, the High Authority considers this refusal to be discriminatory under the provisions of the European Convention on Human Rights.256

It therefore recommends that the competent Minister

amend Article L 512-2 of the Social Security Code and delete Article D 512-2 of the same Code, and asks to be informed of the action taken within four months. The HALDE also asks to be heard in the appeal before the Social Security Court.257 Right to unemployment.

The right to register as a jobseeker is only available to foreign nationals under certain specific conditions, in this case when the foreign national holds a residence permit eligible for unemployment benefits.258 Foreign nationals may be registered as jobseekers with Pôle emploi, which checks259 that they hold one of the residence permits provided for in Article R. 5221-47 of the Labor Code.260 The Conseil d’État had also ruled that a foreigner who is not authorized to work cannot be regarded as a job seeker and therefore cannot legally be registered on the list of job seekers.261 This principle found its first expression in the French Labor Code in 1992,262 in the provisions that now appear in article R. 5411-3, which state that “foreign workers must provide proof that their situation is lawful with regard to the provisions regulating the exercise of salaried professional activities by foreigners”. Law no. 93-1027 of 24 August 1993 relating to immigration control and the conditions of entry, reception and residence of foreigners in France, known as the Pasqua Law, is the source of the current article L. 5411-4 of the Labor Code, under which the National Employment Agency, now Pôle emploi, is required to check the validity of residence and work permits when a foreigner is registered on the list of jobseekers. This authorizes Pôle emploi to access the files of government departments in order to carry out the necessary checks.263 The Constitutional Council found no breach of the principle of equality between nationals and foreigners and no infringement of privacy.264

It was a decree dated 11 May 2007265 that restricted registration on the jobseekers list to holders of certain residence permits, through provisions that had no real connection with the main purpose of the decree, which was to modify the work permit system. Article R. 5221-47 of the Labor Code states that foreign workers must meet the conditions for registration set out in the section of the Labor Code dealing with jobseekers. Article R. 5221-48 gives a fairly long list of the residence permits required for this purpose, updated in line with reforms to the law on foreign nationals, the overall consistency of which is not self-evident.266 This list now includes the temporary or multi-annual “student” or “student-mobility program” residence permit (or long-stay visa valid as a residence permit), with work authorization for salaried employment exceeding 964 h/year, if the employment contract, related to the student’s university course, has been terminated at the employer’s initiative or due to force majeure. In two recent decisions dated 1 March 2023, the Conseil d’État confirmed this rule, ruling that the fact that foreign nationals holding “student” (except in the cases mentioned above) and “entrepreneur/professional” residence permits are unable to register with Pôle emploi is not contrary to the principles of equality and non-discrimination guaranteed by article 14 of the European Convention on Human Rights, Article 1 of Protocol no. 12 to that Convention, Article 1 of the First Additional Protocol to that Convention, and ILO Convention no. 97.267

If the residence permit is not renewed, the holder loses the right to unemployment benefit. In principle, when the residence permit expires, payment of benefits ceases unless the foreign national can provide proof that a receipt has been issued and sent to Pôle emploi. By way of derogation, there may be continuity of the right to reside and work for certain residence permits: between the expiry date of the residence permit, or the four-year multi-annual residence permit, and the decision taken by the administration on the application to renew the permit, the foreign national may prove that he/she is legally resident by presenting the expired permit, for a period of three months from the expiry date. During this period, they retain all their social rights and the right to work.268 Only the general four-year multi-annual residence permit is affected by this presumption of continuity of the right to residence. Other multi-annual residence permits with a shorter period of validity (in particular those for students or for private and family life) are not, nor are temporary residence permits.