Recruitment discrimination based on family leave in the position of coordinator (TAS 11/2020, issued on 23 March 2020)
The Ombudsman for Equality was contacted by a person referred to as A who suspected that she was discriminated against during recruitment on the basis of family leave. A had worked as a coordinator of international affairs, in a fixed-term employment relationship as a family leave substitute. Less than six months after the expiry of A’s employment relationship, the same position she had managed as a substitute was opened for application as a permanent post. A applied for the vacant position. A was on maternity leave and unable to start in the position immediately, so she said she would be available for work less than one year later, in September. A was not invited to an interview or selected for the position. When A asked for the reason, she was told that the employer needed for the position a suitable individual who could start right away.
The Ombudsman for Equality asked the employer for a clarification of the matter. The employer stated that one criterion in filling the position was the date when the applicant could start the work. The company needed to find a suitable person who could start at the beginning of January the following year. This is why the job advertisement mentioned that the position would be filled once a suitable individual was found. A stated in her application that she would be available for the position beginning in September the following year. The employer admitted being aware of A’s family leave but denied that the family leave affected the decision on recruitment. As the reason why A was not selected for said position, the employer stated that it had chosen the person it deemed most suitable for the position who could fill the position in line with the employer’s need, i.e. as soon as possible.
Prohibition of discrimination upon hiring of employees in the Act on Equality between Women and Me
Pursuant to section 8(1)(2) of the Act on Equality between Women and Men, the action of an employer shall be deemed to constitute discrimination prohibited under the Act on Equality between Women and Men if the employer upon employing a person, selecting someone for a particular task or training, or deciding on the duration or continuation of an employment relationship or the pay or other terms of employment acts in such a way that the person finds themselves in a less favourable position on the basis of pregnancy or childbirth or for some other gender-related reason.
In principle, when hiring employees, a person who is pregnant or on family leave should be treated in the same way as the other applicants. Failing to select a person for a position due to pregnancy or family leave, for example, is not allowed. Extra costs incurred by the employer from maternity leave or from acquiring a substitute are not acceptable reasons under the Act on Equality between Women and Men for bypassing a person upon hiring of employees. The fact that a person cannot, in practice, manage their own duties due to pregnancy or family leave but a substitute is needed for that person usually cannot be regarded as an acceptable reason. A substitute can be hired for an employee for the duration of family leave, and only extremely exceptional situations require the same individual to carry out the work from start to finish.
In practice, an evaluation of a discrimination matter upon hiring of employees requires making a comparison of merits between the person selected for the position and the individual suspecting discrimination. If a job applicant who suspects discrimination can demonstrate that he or she was more qualified for the position than the person of opposite gender selected for it, an assumption of discrimination emerges. If the applicant was pregnant or on family leave at the time in question, the person of comparison can be a person of the same gender. The emergence of an assumption of discrimination in cases of pregnancy and family leave also requires that the employer knew of the employee’s pregnancy or family leave.
Assessment of the case
In the case, the first step was to assess whether A could be regarded as more qualified for the position than B, the successful applicant. The Ombudsman for Equality reviewed the merits of A and B. Although the Ombudsman for Equality did not make an actual comparison of merits, the information obtained suggested that A was more qualified for said position than B on the basis of her work experience.
The employer decided not to select A, the more qualified applicant, for the position, knowing that she was on family leave. Thus an assumption of discrimination emerged in the case. In order to disprove the assumption of discrimination, the employer should demonstrate that deciding not to select A was based on some other, acceptable reason than her family leave.
As the reason why A was not selected for the position, the employer stated that it had chosen the most suitable person who could fill the position in line with the employer’s need, as soon as possible. In the view of the Ombudsman for Equality, the employer justified the decision not to select A primarily with the fact the was unable to start at work in January the following year, but only in September. In the assessment of the Ombudsman for Equality, the position at hand did not involve an extremely exceptional situation that would require the same individual to carry out the work from start to finish. The employer’s reason not to select A for the work because she was unable to start in January could not be regarded as acceptable grounds referred to in the Act on Equality between Women and Men for bypassing her in hiring of employees.
The employer did not present any other reason for deciding not to select A for the position, such as one related to her suitability or applicability. Hence The Ombudsman for Equality found that the employer had discriminated against A in violation of the Act on Equality between Women and Men on the basis of her family leave.
A comparison of merits between the applicants, evaluation of proof and the final decision on the matter of discrimination are ultimately made by a district court, during the processing of any compensation action brought by the employee against the employer, if the parties cannot otherwise reach a settlement in the case.