Suspected case of discrimination after a male employee returned from family leave (TAS 352/2016 issued on 4 April 2017)
The Ombudsman for Equality found that the employer had discriminated against the male employee because it had not taken into consideration the man’s return from family leave in the organisation and allocation of work.
The male employee had started a 14-month child care leave in June 2015. A permanent employee had been employed to substitute for him. The man had returned to work in August 2016, but the employee substituting for him had continued to perform the same duties. There had not been any actual work duties left for the male employee to do, but he had been assigned strenuous work in the warehouse, which had made his previously operated arm sore. The employer had also not talked to the man after his return from family leave. In addition, the man said that the keys to the workplace, the work telephone or his work email had not been given back to him. The male employee had later been laid off for financial or production-related reasons. The employer had told the man he had been selected for lay-off for health reasons as he could no longer carry out all of the duties assigned to him because of his arm.
In its statement, the Ombudsman for Equality stated that family leaves are a statutory right men also enjoy and they must not cause any negative consequences to the employee before or after the family leave. When organising work and work duties, the employer must take into consideration the rights of employees on family leave, such as the right to return to work and the right to benefit from all improvements made in the terms and conditions of employment during the employee’s absence. A substitute will be employed for the duration of the family leave, if necessary. The employment of a substitute must not, however, prevent the employee on family leave from returning to his or her former duties.
The Ombudsman for Equality found that the employer had not adequately taken into consideration the man’s return from family leave when it organised work duties and allocated work. The employee substituting for him had continued to perform the same duties, which only left work in the warehouse for the man to do. This rose the presumption of discrimination and the employer’s failure to comply with the Equality Act.
Insofar as the matter concerned the interpretation of the Employment Contracts Act regarding return from family leave and the grounds for lay-off, the matter has been separately investigated by the occupational safety and health authority.