An employee's lay-off, pregnancy and use of parental leave (TAS 101/2018, issued on 26 July 2018)
Woman A requested the Ombudsman for Equality to investigate whether she had been discriminated against in violation of the Equality Act, when she had been laid off before the start of her maternity leave, and the lay-off had been continued after the end of her parental leave.
Woman A had started her employment in the employer's service at the end of 2012. In spring 2013, she announced that she would go on maternity leave in June 2013. Woman A was laid off two weeks before the start of her maternity leave.
In February 2016, woman A contacted her employer for the first time regarding her return to work and announced that she would return to work in September that year. After this, she contacted the employer several times by e-mail and by telephone until the employer announced two days before the planned date of return to work that the lay-off will be continued, because there still were no suitable work duties available for A. Since then, the lay-off of woman A has continued at least until spring 2018, when she requested the Ombudsman for Equality to investigate her case. According to A, there would have been several vacancies open at the company, which she would have been suited for, but the employer had not offered these jobs to her.
The first question regarding the case was whether A had been laid off on discriminating grounds, and the second whether the employer had neglected its obligation to offer work to woman A.
Woman A's lay-off
The indisputable fact in the case is that the employer had been aware of woman A’s pregnancy before laying her off. Furthermore, the investigation revealed that A had been laid off for a longer time than other employees – although, the employer's statement did not reveal whether the other persons who had been laid off in the summer of 2013 were still in the employer's service.
Therefore, the burden of proof for whether A had been discriminated against in connection with her lay-off had been transferred to the employer. The employer was to prove that it had had a real reason based on the company’s needs to assign the lay-offs as they had been assigned and that the reason for continuing the lay-off of A for a longer time than that of other employees had not been her pregnancy or family leave.
According to the employer, woman A was laid off because the duties she had been performing had ended. A, on the other hand, pointed out that the duties in question had ended already at the end of 2012 and that she had been performing other duties since then for six months before being laid off. According to the employer, the lay-off was continued in the summer of 2016, because the company still did not have any jobs to offer to A that would match her qualifications and experience.
Therefore, the case was about assessing the proof regarding at least what kind of duties A had been performing before the lay-off and whether the amount of the work duties performed by her had reduced as referred to in the Employment Contracts Act.
The Ombudsman for Equality has no authority to assess the compliance of the lay-off with the Employment Contracts Act. However, the Ombudsman for Equality drew attention to the fact that lay-offs should be a temporary measure. Therefore, in this case, it was also to be assessed whether A's lay-off had been implemented in compliance with the Employment Contracts Act, considering that the lay-off had continued from June 2013 to the year 2018.
Open vacancies at the employer company
The Ombudsman for Equality noted that A had contacted the employer the first time in February 2016 and announced that she would return to work at the beginning of September. Therefore, the employer had six months time to search replacing work duties for her. Still, woman A had been informed about the continuance of the lay-off only two days before she was supposed to return to work.
Woman A submitted to the Ombudsman for Equality a copy of a job advertisement, where the employer was seeking a permanent employee to a position to which A believed she would have been suitable for after appropriate orientation. The job in question was open in the turn of April-May 2016, when the employer was aware of A's intentions to return to work as of September 2016.
This job was not offered to A. According to the employer, the job in question had been a temporary three-month substitution of a person on sick leave, and the person hired to the position had been a trainee who had already been performing the same duties without pay. According to the employer, woman A would not have been suited for the position without additional training.
The employer's statement did not reveal whether there had possibly been more similar positions open or who had been chosen to the permanent vacancy that had been open. Therefore, in this case, it was to be assessed whether, when filling the position in the spring of 2016, the situation had constituted the kind of obligation to offer work as referred to in the Employment Contracts Act.
Primarily, this is a case requiring interpretation of the Employment Contracts Act and assessment of the relevant proof. The competence of the Ombudsman for Equality is restricted to monitoring of the Equality Act, and they are not a competent authority with regard to monitoring of other acts such as the Employment Contracts Act.
Since the grounds for lay-offs are defined in the Employment Contracts Act, within the scope of its competence the Ombudsman for Equality could not investigate the case with reference to whether there had been grounds for the lay-off or to whether the employer had been under an obligation to train woman A to the open position in accordance with the Employment Contracts Act.
Furthermore, based on the written material, the Ombudsman for Equality was unable to take a closer stand on evidential issues. The review of evidence and the final resolution of the discrimination matter will take place in the district court in a possible compensation claim case against the employer, if the parties are unable to settle the matter by other means.