Fixed-term employment contract of an employee on family leave was not renewed as she was not actually available for the task (TAS 93/2016, issued on 2 June 2016)

The Ombudsman for Equality found that a fixed-term employee working in a project implemented by a university for an outside customer was subjected to discrimination prohibited under the Equality Act when her contract was not extended as she informed the employer of her intention to take child care leave following parental leave.

The employee had started working at the institute operating under the auspices of the university while still a student. The employee had already had a total of 21 fixed-term employment contracts. The last four contracts, the duration of which was from six months to a year, concerned a single project for an external customer. The contract had been renewed twice while the employee had been on maternity and parental leave, and a substitute had been recruited for her for this period.

In summer 2015, the employee talked to the employer about taking child care leave. It was agreed that she would return to work in August 2016. In December 2015, however, she was told that her fixed-term contract would not be extended. On the other hand, the fixed-term contract of her substitute was continued. The fact that the contract concerned duties previously discharged by the employee and an on-going project was not contested.

In the information provided by it, the employer explained that a recruitment permission procedure had been introduced at the university at the end of 2015. By decision of the president, a separate permission had to be sought for each recruitment at the university, and the institute was unable to apply for a recruitment permission for a fixed-term employee who was on family leave. A recruitment permission could only be applied for a person who was actually available for the project in question. It was thus only possible to apply for a permission to recruit the employee who substituted the employee on family leave.

According to the employee, she had been led to believe by the employer that her employment relationship would be continued, regardless of whether or not she would take child care leave. The employee would have been willing to return to work in January 2016 if the university had presented the termination of her employment as the alternative. The employee also pointed out that no recruitment permission was even applied for in her case, and thus the decision not to renew the fixed-term employment contract was made internally at the institute, outside the scope of the recruitment permission procedure.

In her statement, the Ombudsman for Equality expressed her concern over the possibility that a university would widely use a recruitment permission procedure that would regularly prevent the renewal of the fixed-term employment relationship of a person taking family leave. This procedure would be apt to put an employee in a less favourable position due to pregnancy and taking of family leave, and in many cases this could constitute discrimination prohibited under the Equality Act.

In this case, however, no permission had been applied for, and it appears that the decision not to apply for the permission was based on the assumption that the permission would not have been granted because the employee was on child care leave. The Ombudsman for Equality finds it likely that the recruitment permission would have been applied for and the new contract would have been offered directly to the employee in question, had she not been on child care leave. A suspicion of discrimination thus arises in the matter. In order to disprove the suspicion, the employer should produce some other acceptable reason for their action.

The only justification given by the university for the decision not to renew the contract was that due to taking child care leave, the employee was not actually available for the task. The condition of being actually available cannot be considered an acceptable reason to exclude an employee whose contract has on previous occasions been renewed without advertising the role for applications.

The Ombudsman for Equality found that a fixed-term employee working in a project implemented by a university for an outside customer was subjected to discrimination prohibited under the Equality Act when her contract was not extended as she informed the employer of her intention to take child care leave following parental leave.

The employee had started working at the institute operating under the auspices of the university while still a student. The employee had already had a total of 21 fixed-term employment contracts. The last four contracts, the duration of which was from six months to a year, concerned a single project for an external customer. The contract had been renewed twice while the employee had been on maternity and parental leave, and a substitute had been recruited for her for this period.

In summer 2015, the employee talked to the employer about taking child care leave. It was agreed that she would return to work in August 2016. In December 2015, however, she was told that her fixed-term contract would not be extended. On the other hand, the fixed-term contract of her substitute was continued. The fact that the contract concerned duties previously discharged by the employee and an on-going project was not contested.

In the information provided by it, the employer explained that a recruitment permission procedure had been introduced at the university at the end of 2015. By decision of the president, a separate permission had to be sought for each recruitment at the university, and the institute was unable to apply for a recruitment permission for a fixed-term employee who was on family leave. A recruitment permission could only be applied for a person who was actually available for the project in question. It was thus only possible to apply for a permission to recruit the employee who substituted the employee on family leave.

According to the employee, she had been led to believe by the employer that her employment relationship would be continued, regardless of whether or not she would take child care leave. The employee would have been willing to return to work in January 2016 if the university had presented the termination of her employment as the alternative. The employee also pointed out that no recruitment permission was even applied for in her case, and thus the decision not to renew the fixed-term employment contract was made internally at the institute, outside the scope of the recruitment permission procedure.

In her statement, the Ombudsman for Equality expressed her concern over the possibility that a university would widely use a recruitment permission procedure that would regularly prevent the renewal of the fixed-term employment relationship of a person taking family leave. This procedure would be apt to put an employee in a less favourable position due to pregnancy and taking of family leave, and in many cases this could constitute discrimination prohibited under the Equality Act.

In this case, however, no permission had been applied for, and it appears that the decision not to apply for the permission was based on the assumption that the permission would not have been granted because the employee was on child care leave. The Ombudsman for Equality finds it likely that the recruitment permission would have been applied for and the new contract would have been offered directly to the employee in question, had she not been on child care leave. A suspicion of discrimination thus arises in the matter. In order to disprove the suspicion, the employer should produce some other acceptable reason for their action.

The only justification given by the university for the decision not to renew the contract was that due to taking child care leave, the employee was not actually available for the task. The condition of being actually available cannot be considered an acceptable reason to exclude an employee whose contract has on previous occasions been renewed without advertising the role for applications.

22.08.2016