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A fixed-term appointment to office of an employee on family leave was not renewed as her substitute was considered to have better capabilities for performing the task (TAS 89/2016, issued on 3 May 2016)

The Ombudsman for Equality found that a person working as the substitute for a catering services manager was subjected to discrimination prohibited under the Equality Act as her appointment to office was not continued when she was on parental leave. While the first fixed-term appointment expired at the end of 2015, the original office holder was to be absent until the end of 2016. Instead of renewing the fixed-term appointment to office of the employee on family leave, it offered the extended appointment for the fixed term of a year directly to her substitute. The employee on family leave would have returned to work in April 2016.

According to the information provided by the joint municipal authority, the absence of the permanent holder of the catering services manager’s office was associated with the operative planning of a new catering services centre to be built in the joint municipal authority. As it turned out in early October 2015 that the project would continue until the end of 2016, the joint municipal authority had to choose weather the catering services manager would for the remaining period be deputised by the employee on family leave or the substitute hired for her. The substitute of the employee on family leave had become familiarised with the activities over two years and assumed responsibility for the transition to the new catering services centre, whereas the employee on family leave was not seen as having adequate capabilities for launching the activities of the new centre and introducing new production methods. Replacing the person responsible for the catering services and thus catering for patients in the middle of the process was considered an excessive risk. The joint municipal authority felt that its only option was to extend the employment relationship of the substitute for the employee on family leave.

The employee on family leave pointed out that the catering services centre has qualified staff who are, in practice, responsible for preparing the products for the patient and personnel restaurant. The duties of the catering services manager include ensuring that the personnel have adequate resources for doing their work and assuming overall responsibility for the operation and services of the centre. In addition to managing the unit, the duties of the catering services manager also include managing customer relationships, financial responsibility and serving in an expert role. In addition, induction training is usually offered for an employee who returns from family leave. Induction training after return to work was also cited as a measure that facilitates the reconciliation of work and family life in the equality plan that was part of the joint municipal authority’s personnel policy.

Under section 8(1)(2) of the Equality Act, the action of an employer shall be deemed to constitute discrimination prohibited under the Act if the employer, upon deciding on the duration or continuation of an employment relationship, acts in such a way that the person finds herself/himself in a less favourable position on the basis of pregnancy or childbirth or for some other gender-related reason. As "other gender-related reasons" referred to in this subsection are considered family leaves. However, the action is not deemed discriminatory if the employer can show that it was due to some other acceptable reason rather than gender.

An employer’s financial losses or operative difficulties, including the need to organise a substitute or provide induction training, are not other acceptable reasons referred to in the Equality Act for putting an employee in a less favourable position on the basis of pregnancy of family leave. This has been confirmed in the case-law, and it applies equally to employment relationships valid until further notice or a fixed term. When appointed, the employee who requested a statement had been assessed as competent for the position of the catering services manager, and the fact that the employee in the new situation would have needed more extensive induction training in order to resume her duties was not an acceptable reason for a failure to renew her fixed-term appointment to office and to replace her with a substitute recruited for the period of her family leave.