Suspected case of discrimination related to a promotion during family leave (TAS 22/2019, issued on 25 September 2019)
A requested the Ombudsman for Equality to investigate whether she has been discriminated against in a manner that violates the Act on Equality between Women and Men (hereinafter the Equality Act) on the basis of her family leave when she was not promoted in the manner proposed by her supervisor after going on family leave.
A’s supervisor and department manager had nominated A and her colleague for a promotion. A went on maternity leave, and after doing so was informed by her employer that the plans for her promotion would not proceed further. A’s colleague, on the other hand, received the promotion.
Assessment of the case
The Ombudsman for Equality felt that, when it came to the particulars of this case, A and her colleague were not so comparable that A’s colleague could be used as a reference person to investigate a suspected case of discrimination in accordance with the Equality Act. The duties that had been planned for A and her colleague were so different in their contents that they were not aiming for the same position.
A suspected that she had been discriminated against in a manner that violated the Equality Act on the basis of her family leave. In such cases, the investigation of a suspected case of discrimination does not require a reference person of the opposite gender and the comparison can be made in relation to a situation where A would not have been pregnant or on family leave. An employee must not be placed in a less favourable position on the basis of their pregnancy or family leave. A presumption of discrimination arises if A has been placed in a less favourable position on the basis of her family leave and if she would have been promoted had she not gone on family leave.
Government proposal 63/1992 states that in cases relating to pregnancy or childbirth or situations where a person has family care obligations, the burden of proof shifts to the employer as soon as the complainant has shown that they are pregnant or that they have family care obligations referred to in the section of the Act. In addition, it must be demonstrated that the employer was aware of the employee's pregnancy or family care obligations.
The employer notified A during her family leave that her promotion had not been approved. The employer had been aware of A’s family leave when the decision was made to not proceed with her promotion.
According to the report submitted by the employer, the company’s management did not see any operational need for the task that had been proposed for A in the organisation. The report states that, in the case of A, the change would have amounted to a change in job titles. The employer stated that they had applied the standardised job requirement classifications used within the company since the start of 2018. According to the report, the job requirement classifications required giving A a team to manage as part of the position that had been planned for her. The position that had been proposed for A did not include such a responsibility.
According to A, her promotion, had it been realised, would not have been limited to just a change in job titles. In addition, A stated that the company has three other employees who have the same job title that had been planned for her, and none of them have any subordinates. According to A, her colleague, who received the promotion, will also not be issued with any supervisory responsibilities in their new position. A also felt that, in connection with the harmonisation of the job titles used in the company, no changes were made to the duties of the employees who have the job title that was proposed for her. A stated that the job requirement classification document was general in nature and includes no team management requirements. According to A, these factors prove that the position that had been planned for her did not require the assumption of any supervisory roles.
The parties have presented contradictory reports on whether the company had any operational need for the position that had been proposed for A and whether the job requirement classification that had been applied by the employer required the assumption of any actual supervisory responsibilities.
The Ombudsman for Equality noted that A had been placed in a disadvantageous position on the basis of her family leave in a manner that is prohibited by section 8 (1) (2) of the Equality Act. The case gave rise to a presumption of discrimination that is in violation of the Equality Act. To counter this presumption of discrimination, the employer must be able to prove that there was some other, acceptable reason for their actions than A’s family leave. To counter the presumption of discrimination, the employer must thus be able to prove that the aforementioned claims are actually true.
The Ombudsman for Equality issues his statements on the basis of documentary evidence and thus cannot provide any opinions when it comes to evidentiary matters. The evidentiary matters of this case include, for example, the aforementioned factors that the parties have provided contradictory reports on. The review of the evidence and the final resolution of the discrimination matter will usually take place in a district court in a possible compensation claim case against the employer.