Impact of pregnancy on a zero hour contract (TAS 320/2013, issued on 24 March 2015)

A person employed as a cleaner requested a statement from the Ombudsman for Equality concerning whether she had been discriminated against in a manner that violates the provisions stipulated in the Act on Equality Between Women and Men (Equality Act) when she was assigned fewer work hours than before after informing her employer of her pregnancy.

The person requesting the statement was an on-call employee and her employment agreement was a so-called "zero hour contract". She had therefore pledged to be available whenever her employer called, but she did not have a minimum number of working hours that her employer would be required to assign her.

In a zero hour contract or an on-call employment agreement, the amount of work to be assigned is primarily at the discretion of the employer, unless otherwise specified in the agreement and there is no established minimum number of working hours specified. If the work is performed irregularly and the number of working hours varies from week to week, it can be difficult to specify an established number of working hours.

In case law and legal literature, the following are considered requirements for an established practice: the practice has been in use for a substantial length of time; the practice is clearly-defined and unambiguous; the practice has been observed without exceptions or with minimal exceptions; and the applied practice is not based on error.  An assessment of the establishment of a given practice is conducted on a case-by-case basis. In case law, when assessing the establishment of working hours, significance is attached to, for example, the content of the employment agreement and the employer's need for labour.

In her statement, the Ombudsman for Equality stated that it must be determined as to whether a certain number of working hours has been established for the person requesting the statement based on the number of hours she worked during her five months of employment.  If the number of working hours can be considered established after approximately five months of work and this number of working hours has decreased significantly after the employer was notified of the pregnancy, this raises the suspicion of discrimination on the basis of pregnancy.  In order to eliminate the suspicion of discrimination, the employer must be able to prove that the reduced number of hours assigned is due to an acceptable reason other than pregnancy.

In this case, there were conflicting reports of when and why the number of working hours assigned to the person requesting the statement had been reduced. The Ombudsman for Equality cannot, in a written statement process, take a stand on evidential issues, which would require, for example, oral testimony. The presentation and examination of evidence concerning disputed issues may be carried out in district court in connection with possible legal action brought against the employer, at which time a final determination can be made as to whether the employer's practice is in violation of the Equality Act.

Finally, the Ombudsman for Equality stated that discrimination at work is subject to punishment under the Criminal Code. The mandate of the occupational safety authority includes considering whether there are sufficient grounds to suspect discrimination at work in this case as well as whether the matter should be reported to the police for further investigation.