Discrimination based on pregnancy when renewing a fixed-term employment contract (TAS/493/2023, issued on 24 January 2024)

Person ‘A’ contacted the Office of the Ombudsman for Equality and requested that the Ombudsman assesses whether A was discriminated against in violation of the Act on Equality between Women and Men ('Equality Act’) when A’s employment contract was not renewed after she became pregnant. A had worked for a public employer in early childhood education with several fixed-term contracts since November 2021. The latest uninterrupted substituting period started in August 2022 and ended in July 2023, after which her contract was not renewed. A started her pregnancy leave in September 2023. A did not have a qualification required in the Act on Early Childhood Education and Care, but had completed studies under an apprenticeship during the latest substituting period after a recommendation to do so from A’s employer.

The Act on Equality between Women and Men prohibits not renewing an employment contract because of pregnancy or family leave (section 8, subsection 1, paragraph 2). This also applies to fixed-term contracts. The additional expenses incurred by the employer or the employee being prevented from carrying out their duties themselves because of pregnancy or family leave are not acceptable grounds under the Equality Act for not renewing an employment contract. A substitute can be hired even for fixed-term employees for the duration of their family leave.

In line with the Act’s provision on the burden of proof (section 9a), A had to prove that the employer was aware of A’s pregnancy and that the employer subsequently treated A differently. The employer had treated A differently when it did not renew A’s employment contract after learning of A’s pregnancy. After this, the employer was responsible for proving that it had an acceptable reason for not renewing A’s contract and that the non-renewal was not based on A’s pregnancy.

In this case, the employer’s practices in recruiting unqualified substitutes had to be examined. The employer had had several open positions in spring and summer 2023. The employer stated that it had taken A’s willingness to continue in her duties into account when the employer filled the open positions. For the positions to which the employer selected a person with the qualifications required by the Act on Early Childhood Education and Care, the Ombudsman for Equality considered that the employer had an acceptable reason for its decision.

One of the persons hired who had previously worked as a substitute was still not finished with her studies like A. The employer could not prove that the person selected was better qualified for the position than A. The Ombudsman for Equality deemed that the employer had the obligation to examine the qualifications of the two persons and to prove that the candidate selected was better qualified for the position in order to prove that discrimination had not occurred.

The employer also invoked A’s availability in the case. Based on the information received, the Ombudsman for Equality considered it apparent that the discussions had on A’s availability between A and the employer had pertained to A’s availability on certain individual dates, not to A’s availability to continue the employment. The employer admitted to having been aware of A’s willingness to continue in her duties before the discussion. The employer had informed A that it needed a substitute for the entire period in question. The Ombudsman for Equality deemed that A not being able to carry out the tasks for the entire duration of the period in question could not be considered an acceptable reason. In the Ombudsman for Equality’s view, the employer should have understood that A was available for a longer substituting contract.

The Ombudsman for Equality deemed that the employer had not presented any such grounds that would have proven that discrimination did not occur. The employer had therefore violated the Equality Act when it did not renew A’s contract.

The Ombudsman for Equality offered to assist the two parties in settling the case by negotiation. Both parties agreed to negotiate. The Ombudsman for Equality met with both parties separately and then organised a joint meeting. The parties settled the case, and the employer compensated A for the discrimination A experienced and the loss of income A suffered.

26.04.2024