Impacts of pregnancy and family leave on continuing fixed-term employment (Ombudsman for Equality, TAS 320/2023, issued on 5.7.2023)

Female A requested that the Ombudsman for Equality investigate if she was discriminated in a manner criminalised in the Equality Act after her fixed-term work contract was not renewed. A had worked as a substitute for a specialist doctor at a central hospital with linking fixed-term contracts without interruptions. The last letter of appointment was issued to cover the family leave, and it ended at the beginning of childcare leave. Before her family leave, A had told her supervisor that she would like to return to the same tasks after family leave. She was not offered work anymore after the family leave.

Assessment of the case

The Act on Equality is based on the notion that an employee should be treated equally to if they had never been pregnant or on a family leave. They should not be left in a weaker position than others because of a pregnancy or family leaves. A fixed-term employment relationship cannot be limited in length so that it only continues until the beginning of a maternity or parental leave, and the renewal of a fixed-term employment contract cannot be rejected if the work in question continues.

Limiting the renewal of an employee's employment contract also refers to not renewing the contract of fixed-term employees. If the employer was aware of the employee's pregnancy, the employer can have the burden of proof that the pregnancy did not affect the renewal of the fixed-term contract, and that there has been another reason for it, and that it complies with the Act on Equality. 

A's fixed term employment relationship was not due to substituting a specific person in office. The employer referred to the organisational guidelines according to which the letter of appointment of a person leaving for a maternal or parental leave is continued for the duration of the maternity and parental leave. In addition to this, the employer referred to a reason related to production, more specifically to the consequences of the Covid-19 pandemic, as there were less patients and less work due to the pandemic. According to the employer, the renewal of A's fixed-term contract was not offered for her after the family leave due to this reason. 

It remained unclear based on the information provided by the employer if it had been common practice by the employer to first ask employees if they were interested in having their fixed-term contracts renewed or if this done automatically or if an expression of interest was expected from A in order to renew her fixed-term contract. A stated that she had told her supervisor that she was interested in continuing work in the position after her family leave before starting her family leave.

The Ombudsman for Equality concluded that the central hospital had discriminated A by deciding in advance that A's employment relationship will end at the end of her family leave.  Therefore, A's pregnancy and family leave were the reasons for not renewing her fixed-term contract as a substitute in office. The employer has not been able to prove that they had an acceptable reason not to continue A's substitute position as the office was not directly connected to substituting a specific person in office, and it appears that the need for labour force has continued.

The Ombudsman for Equality issued a recommendation for the central hospital to update their guidelines to correspond to the Act on Equality between Women and Men so that the duration of the employment contracts is not tied to family leaves.

05.07.2023