Suspected case of pay discrimination in the salary of a teacher returning from family leave (TAS 151/2015 issued on 23 November 2015)
A schoolteacher requested a statement from the Ombudsman for Equality regarding whether she had been discriminated against in violation of the Act on Equality between Women and Men. She suspected the employer of setting salary terms that, due to her gender and family care obligations, put her in a less favourable position than other persons working for the employer.
The teacher had taken an extended family leave, which was followed by a study leave. During this time, the employer had restructured its payroll system. When the teacher returned to work, her performance level in the new payroll system was set lower than the performance levels of the peers she named; these levels had been set for the first time after restructuring the payroll system. The salary of a new male teacher who had begun working at the same time was set at the same level of the teacher requesting the statement. Seen from a salary standpoint, the teacher requesting the statement was treated as a new employee, even though her employment had begun several years before taking family leave.
The Ombudsman for Equality does not conduct performance evaluations. It is for this reason that the Ombudsman for Equality did not take a stand on the teacher's work performance itself, but rather the adverse impact that her family leave had on what her work performance was estimated to be in violation of the Equality Act. Insofar as the matter is a question of the adverse impact that a study leave has on setting salaries, the matter in question may be an issue of the interpretation of the Employment Contracts Act or Equality Act, which falls within the purview of the occupational safety and health authorities.
In her statement, the Ombudsman for Equality felt that, if the teacher had not taken a study or family leave, it is likely that her performance would have been set at the same level as her peers in the first evaluation, as the performance level in question seems to have served as the basis in the first evaluation after the restructuring. Any deviation from this basis would require special grounds.
Even if it had been possible to assess the teacher's performance right after returning to work, the fact that she had been on family leave should not have had any adverse impact on what level her personal supplementary remuneration was set. If it turns out that she has been dropped to a level lower than her peers in her first performance evaluation after returning to work solely because she had been on family leave when the new payroll system was instituted, her family leave thus resulted in her unfavourable treatment compared to her peers in violation of the Equality Act. This would raise the presumption of discrimination in the matter, thus requiring the employer to provide an acceptable reason, in accordance with the Equality Act, for taking the action it did.
Finally, the Ombudsman for Equality stated that, if the parties could not reach an agreement on the matter, salary disputes concerning interpretation of both the Employment Contracts Act and Equality Act would ultimately be resolved in a District Court.