Dismissing a pregnant employee on financial and production-related grounds (TAS 343/2018, issued on 4 April 2019)
A woman requested that the Ombudsman for Equality provide a statement since she suspected that she had been discriminated in a manner that violated the Act on Equality between Women and Men (609/1986, hereinafter the Equality Act), as she had been dismissed on financial and production-related grounds while she was pregnant.
The occupational safety and health authority, the Occupational Safety and Health Administration of the Regional State Administrative Agency (AVI), transferred the matter on the basis of section 21 of the Administrative Procedure Act (434/2003) to the Ombudsman for Equality to the extent that the matter constituted a suspected case of gender-based discrimination. The occupational safety and health authority issued an inspection report that focused on the protection against dismissal for pregnant employees that is prescribed in chapter 7, section 9 of the Employment Contracts Act.
According to the Equality Act, the action of an employer shall be deemed to constitute discrimination prohibited under the Act if the employer gives notice on, terminates or otherwise discontinues an employment relationship on the basis of gender. An employer’s action will be considered to have occurred on a gender-related basis if, for example, the reason for the action was an employee’s pregnancy or family leave. However, the equality of the genders will not be considered to have been violated if the employer can demonstrate that their action was based on some other acceptable reason than gender.
In accordance with the Equality Act, in situations where an employee is to be dismissed, they should be treated in the same manner as they would be if they were not pregnant or on family leave. They must not be placed in a disadvantaged position compared to where they would have been had they not been pregnant or on family leave, nor in a disadvantaged position compared to other employees. However, an employee’s pregnancy or family leave will not place them in a more advantageous position than other employees.
A pregnant employee can be dismissed in such cases where the dismissal is not based on their pregnancy but on lawful financial or production-related grounds.
Assessment of the case
The primary focus of the case centred around the interpretation of chapter 7, section 3 of the Employment Contracts Act and whether the employer had had a financial and production-related justification for the termination of the employee’s employment relationship that was in accordance with the Employment Contracts Act.
Even though the scope of the Ombudsman’s competence does not allow the Ombudsman to take a stand on whether the Employment Contracts Act has been complied with in this matter, the aforementioned provision of the Employment Contracts Act must be taken into account when assessing whether the employee has been discriminated against in a manner that violates the Equality Act for reasons related to their pregnancy.
The undisputable fact in the case was that the employer had been aware of the employee’s pregnancy when their employment relationship was terminated. Therefore the matter gives rise to the presumption of discrimination and the burden of proof is transferred to the employer. To counter this presumption of discrimination, the employer must demonstrate that they had justifiable grounds for terminating the employment relationship and that the dismissal was not based on the employee’s pregnancy.
The inspection report submitted by the Regional State Administrative Agency states that the report submitted by the employer on the reduction in work and the financial and production-related grounds for the dismissal is contradictory and that the employer did not submit any reports that complied with chapter 7, section 9 of the Employment Contracts Act and that could be used to consistently prove that the dismissal was not, in fact, based on the employee’s pregnancy.
In his statement, the Ombudsman for Equality also noted that the report submitted in connection with the matter on the company’s financial situation and labour needs was contradictory.
However, since the scope of the Ombudsman for Equality’s competence does not allow for the investigation of the existence of a ground for dismissal, the investigation of this matter will be left to a court of law. The interpretation of the Employment Contract Act, the review of the evidence, and the final resolution of the discrimination matter will, ultimately, take place in a district court in a possible compensation claim case against the employer where evidence may also be presented on the matters that remain contradictory on the basis of the written reports made by the parties.