Continuation of employment of a fixed-term employee who had graduated from apprenticeship training (TAS 345/2020, issued on 15 July 2021)

A asked the Ombudsman for Equality to determine whether she had been discriminated against in a manner prohibited in the Act on Equality between Women and Men (609/1986, hereinafter the Equality Act) when she was not made a permanent employee and her employment relationship was not continued on a fixed-term basis after she had graduated for a specialist qualification in accordance with apprenticeship training. A was the only female apprenticeship employee and the only one of four fixed-term employees in apprenticeship whose employment relationship was not extended. A’s employment relationship ended with graduation in the spring of 2020, and she worked elsewhere during the summer. When A contacted the employer in the autumn, she learned that employee B, who had been in apprenticeship, had graduated like A and had been hired for a permanent position. C and D, who had been in apprenticeship training with the same employer, continued to work in a fixed-term employment relationship.

Applicable provisions

Section 8 of the Equality Act specifically prohibits discrimination in working life. According to the provision, the action of an employer can be deemed to constitute discrimination prohibited under the law if the employer upon employing a person or selecting someone for a particular task or training, bypasses a more qualified person of the opposite gender in favour of the person chosen. Such action does not, however, constitute discrimination if the action was for an acceptable reason and not due to gender, or if the action was based on weighty and acceptable grounds related to the nature of the job or the task (section 8, subsection 1, paragraph 1). 

When job applicants include both women and men, the employer must carry out a comparison of merits. Selection criteria established by the employer beforehand are of key relevance in a comparison of merits. Usually attention is paid to the applicants’ education, previous work experience, and such characteristics, knowledge, and skills that are advantageous when carrying out the duties and which can thus be regarded as additional merits. The provision does not restrict an employer’s right to choose the candidate it considers the best for a particular job. The Act aims to prevent situations in which a person is appointed unjustly on the basis of gender when another candidate would have been more qualified. 

An applicant who feels that they have been discriminated against in recruitment must be able to demonstrate, during legal proceedings for instance, that they are more qualified than the person selected. If the applicant can do this, the employer must be able to demonstrate that bypassing the applicant was for an acceptable reason and not due to gender, or that the selection was based on weighty and acceptable grounds related to the nature of the job or the task. 

According to the main rule, only people who were involved in the selection can refer to the prohibition of discrimination in recruitment. Depending on the situation, however, it may be enough that a person has declared their interest in a position or that the employer should have known that they were interested in it based on the circumstances. Employers do not have a statutory obligation to hire a fixed-term employee for a new employment relationship. A decision not to renew a fixed-term contract can, however, in some cases be regarded as a recruitment situation, and failure to renew it may not be based on discriminatory grounds.

Assessment of the case

In this case, the school’s fixed-term employees who were in apprenticeship training with the employer had an employment relationship directly with the municipal employer. Other fixed-term employees had an employment relationship with a private employment agency. The purpose of the apprenticeship training was for persons selected for apprenticeship to become qualified in a sector suffering from a shortage of labour, in the position of a special needs assistant. Thus completing the qualification according to apprenticeship training provided the selected persons with the eligibility to work as a special needs assistant. On the other hand, the completion of apprenticeship training does not automatically lead to employment after the apprenticeship has ended.

The Ombudsman for Equality assessed the employer’s action specifically, to the extent it involved the decision not to hire A on a permanent basis and, on the other hand, insofar as the question was of taking A into account when filling fixed-term posts. 

With regard to the permanent position, the Ombudsman for Equality reviewed the employer’s action between A and B. In its statement, the employer said that, in accordance with the internal administrative regulations, it could make an employee who had held the position on a fixed-term basis for at least six months a permanent employee without a public search. However, a fixed-term employee has no subjective right to be selected even if the individual meets the formal eligibility criteria. In this case, apprenticeship students had been told in the spring, before they were due to graduate, that posts could not be offered to everyone due to a change in the workload. On the other hand, the employer stated that an employee could obtain an extension to a contract later in the autumn, with fewer working hours.

The information did not indicate how many vacant permanent positions the school had in the spring of 2020 and thereafter. The information also did not show how the employer communicated the grounds for obtaining a post without an open search, or how a fixed-term employee could express their interest in a permanent position. If it could have been undisputedly proven that A, similarly to B, was also willing to continue working after graduation and that the employer was aware of this, then the qualification and suitability of A and B for the position should have been compared. If there was only one vacancy to be filled, the employer should have evaluated which of them was more qualified. If several positions could have been made permanent, even then a comparison of merits could be used to evaluate whether hiring only B on a permanent basis was equal towards A. In this respect, A’s and the employer’s views differed from each other, and the matter remained open in the statement.

Regarding fixed-term positions, the Ombudsman for Equality stated that the employer had hired C and D for fixed-term positions, contrary to A. C was employed through a private employment agency, and D’s extension to the fixed-term employment contract made it possible to complete the apprenticeship training. In their statements, both A and the employer noted that the school had several fixed-term positions vacant in the employment agency’s online service after spring 2020. Apparently A did not apply for a single position in the open search, however. The employer said that A did not respond to an enquiry about assistants’ hours in the spring of 2020, either.
On the basis of the information obtained, the Ombudsman for Equality did not have available information which would make it possible to assess the employer’s action and decision not to hire A for a fixed-term position by means other than through an open search. The Ombudsman for Equality finds that A was not in a position comparable with C and D in the filling of fixed-term jobs; based on the information available, she was not discriminated against in the filling of fixed-term positions.

The Ombudsman for Equality primarily comments on legal questions concerning the interpretation of the Equality Act. Evaluation of proof, comparison of merits and the final decision on the matter of discrimination are ultimately made by the district court hearing the possible compensation action brought against the employer.
 

06.09.2021