Fixed-term employment contract not extended due to family leave (TAS/212/2024, issued on 11 July 2024)

Person A asked the Ombudsman for Equality to investigate whether she had been discriminated against in a way prohibited by the Act on Equality between Men and Women (Equality Act) when her fixed-term employment contract was not extended or made permanent while she was on family leave. A had been working for a private employer in several fixed-term positions for two years. According to A, the employer had verbally promised when the last employment contract was signed that the next one would be permanent. However, A's contract was not extended or made permanent after she took family leave. According to her supervisor, there was no longer a need for labour. However, several new employees were recruited to the workplace to carry out the same functions as A during her family leave.

Equality Act prohibits the non-renewal of employment on the grounds of pregnancy or family leave

The Equality Act prohibits the non-renewal of an employment contract on the grounds of pregnancy or family leave (Equality Act, section 8, subsection 1 paragraph 2). This provision prohibits, among other things, the non-renewal of a fixed-term contract on the grounds of pregnancy or family leave, or the limitation of a fixed-term contract to the beginning of the family leave.

Under the shared burden of proof provision of the Equality Act (section 9a), it was up to A to prove that the employer had known about her pregnancy and had subsequently placed her in an unequal position. As A had been on family leave when the employer decided to terminate her employment, there was a presumption of discrimination in the case. The onus was then on the employer to prove that the non-renewal was not due to the family leave but to another acceptable reason.

Extra costs for the employer or the fact that a person cannot practically carry out her duties because of pregnancy or family leave are not acceptable reasons for non-renewal under the Equality Act. The employer’s conduct does not have to be intentional or negligent to be discriminatory.

The employer’s need for labour was considered to continue

The case was assessed as to whether A would have been treated in the same way if she had not been on family leave. The employer’s explanation was based on the reorganisation of tasks and the uncertainty of the need for labour. However, during A's family leave, the employer recruited four employees for the tasks that A had previously been carrying out. The Ombudsman for Equality considered that the employer’s need for labour did continue in tasks that A was able and willing to perform.

The employer also argued that A could have applied for the positions in question through the open call for applications. In principle, the employer has the right to decide whether or not to fill the position through a recruitment procedure, but the procedure must not be discriminatory. The fact that A's fixed term contract had previously been extended directly without a separate application process was relevant. In addition, at the time of the call for applications, A's employment contract had been in force for many months. The Ombudsman for Equality considered that the fact that A did not apply for the position could not be taken into account.

The Ombudsman for Equality found that the employer had not put forward any grounds to contradict the presumption of discrimination. The employer had therefore discriminated against A on the grounds of her pregnancy and family leave by not extending her fixed-term contract after her family leave had begun.

8th October 2024

08.10.2024