Suspected case of discrimination regarding the dismissal of an employee after their return from family leave (TAS 238/2019, issued on 8 November 2019)
A went on family leave from their position as HR manager. During A’s family leave, a substitute was hired to perform their duties. In connection with A’s return to work, their substitute had been promoted to a permanent position. At the same time, the substitute was made a labour relations manager and A a workplace well-being manager. Three months later after A returned back to work, their employer initiated a cooperation negotiations process in the company, and in connection with this process A was dismissed on financial and production-related grounds.
Assessment of the case
According to the Employment Contracts Act and the Act on Equality between Women and Men (hereinafter the Equality Act), an employee has the right to return to their former or similar duties after the end of their family leave. Since A was not allowed to return to their former duties after their family leave, the case gave rise to a presumption of discrimination.
The Ombudsman for Equality noted that the HR manager duties that A had before their family leave and the labour relations manager duties given to their substitute were fairly similar in nature. The duties of a HR manager should have been deemed to be more similar to those of a labour relations manager than a workplace well-being manager. Based on their work experience and educational background, A would have had the prerequisites for handling the duties of a labour relations manager.
To counter the presumption of discrimination, the employer would be required to prove that the position of labour relations manager would not have corresponded with A’s former duties in a way that would have enabled them to perform said duties on the basis of their educational background and experience. The employer would have to demonstrate that they were justified in not offering the position of labour relations manager to A and that the work arrangements were not designed to circumvent A’s right to return to their former duties.
In accordance with the Equality Act, in situations where an employee is to be dismissed, they should be treated in the same manner as they would be if they had not been on family leave. They must not be placed in a disadvantaged position compared to where they would have been had they not been on family leave, nor in a disadvantaged position compared to other employees.
When assessing whether a person’s dismissal was discriminatory in nature, the starting point is to investigate whether the same criteria and policies would have been applied to the employee if they had not taken any family leave. These criteria and policies must not be in conflict with employment legislation or the prohibitions of discrimination laid down in the Equality Act. The situation must be compared to the grounds that a company usually uses when selecting employees for dismissal. If these policies have been deviated from in the case of an employee who has been on family leave, the employer must demonstrate that there has been an acceptable reason doing so.
The employer may not hire a new employee unless there have been changes in the company’s operating conditions as a result of the hiring of the new employee or some other comparable employer procedure before or after the dismissal.
The Ombudsman for Equality felt that the case warranted equating the promotion of a substitute to a permanent position with the hiring of a new employee. The fixed-term contract of the substitute would have ended when A returned to work had their contract not been made permanent. This means that the employer must be able to prove that its operating conditions have changed so substantially between the promotion of the substitute to a permanent position and the dismissal of A that the dismissal was justified. After this, a qualifications comparison could be used to assess whether A had been discriminated against in connection with their dismissal on the basis of their family care obligations.
The Ombudsman for Equality noted that the matter also gave rise to a presumption of discrimination in connection with the dismissal itself. The processes used by the employer indicate that there had been an attempt to circumvent the job security of A, who was returning from family leave, by making the position of their substitute permanent and by transferring A to a position that they could then be dismissed from. A’s right to return to their former duties had not, in fact, been realised, as A had not been offered the position of labour relations manager and was appointed as a workplace well-being manager instead. A’s dismissal must be attributed to the employer’s decision not to offer them their previous job or a similar job in the manner required by the Employment Contracts Act and the Equality Act.
The Ombudsman for Equality issues his statements solely on the basis of documentary evidence, and the Ombudsman cannot arrange any other processes, such as oral proceedings, on the matter. The interpretation of the Employment Contract Act, the review of the evidence, and the final resolution of any discrimination matters will, ultimately, take place in a district court in a possible compensation claim case against the employer.