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Suspected discrimination: fixed-term employment relationship not continued due to pregnancy (TAS 215/2017; issued on 26 March 2018)

Person A has requested the Ombudsman for Equality to assess whether they have been treated in violation to the Equality Act when their employment contract was not continued after going on maternity leave, even though the work would have continued.  The employer recruited new employees in the same year for the same tasks.

The starting point is that, during recruitment, a person should be treated in the same way as they would be if they were not pregnant. In practice, these regulations are particularly important for fixed-term employment relationships. For example, when choosing an applicant for a fixed-term employment relationship, an employer may not pass over an applicant because they are pregnant. In addition, a temporary employment relationship cannot be limited so that it only lasts until the beginning of a maternal, paternal or parental leave period, nor can a decision be made to not extend the fixed-term employment relationship due to a pregnancy or family leave if the work itself is set to continue.

If the employer knew of the applicant’s pregnancy before making their hiring decision, the employer may have to prove that the pregnancy did not affect their decision or the duration of the fixed-term period, and that these had some other justifiable reason that is in accordance with the Equality Act. The burden of proof is shifted to the employer when a person suspecting discrimination has indicated that they are pregnant or that they have statutory family care obligations.

The additional costs to the employer that are caused by the maternal leave or hiring a substitute do not constitute an acceptable justification that is in accordance with the Equality Act for passing over a person due to their pregnancy in a hiring situation. A substitute must usually be selected to replace the fixed-term employee for the duration of their family leave, and only in very exceptional cases can it be considered necessary for the same person to complete their work from start to finish.

Based on the account provided by the employer, the sector in question uses fixed-term employment relationships due to the project-oriented nature of the work and the significant changes in the number of required employees, as well as the professional skills required for project employees. According to A, the other employees at the company who did the same work were employed on a permanent basis. The employer also stated that A did not have the required experience in computer modelling that was required for the task. According to A, they have a grade and good experience with the type of computer modelling in question.

The Ombudsman for Equality considered it peculiar that the employer claimed that A was not competent enough in computer modelling when one takes into account the fact that they have a grade in it and that the skill in question is significant for performing the task. The skills of an employee are usually fully known to the employer by the time the employee is hired for the job. Conducting a thorough assessment of the merits and skills of an employee is to the benefit of both the employer and the employee.

A skill comparison between two qualified persons does not constitute a justified reason that is in accordance with the Equality Act for limiting the fixed-term employment relationship of a pregnant employee. This type of comparison must conducted in a situation where the person suspecting discrimination would not have become pregnant. When the employment relationship of a person who is pregnant or on family leave is to be continued, they must not be compared with other applicants if they are qualified for the job and if the workplace’s policy has otherwise been to renew the employment relationships of qualified employees without an application process.

The parties provided accounts that contradicted in the aforementioned manner especially when it came to the use of fixed-term employment relationships in the company.

The Ombudsman for Equality issues his statement on the basis of the written accounts, and the Ombudsman for Equality did not have the opportunity to arrange e.g. an oral hearing or receive any other types of extended testimonials. It is usually not possible to evaluate evidence-based questions on the basis of written statements when the parties disagree with one another.

Based on the account provided on the matter, it seems that A was the only person with whom the company had signed a fixed-term employment contract in the spring and summer of 2017. Their other recruitments were made with non-fixed-term employment contracts. In addition, A’s fixed-term contract was set to end a little before she was to go on maternal leave.

The Ombudsman for Equality came to the conclusion that the matter includes the presumption of discrimination. If A’s fixed-term employment relationship was not continued due to their pregnancy, the employer has violated section 8(1)(2) of the Equality Act that prohibits discrimination. If, on the other hand, it was done due to some other justifiable reason, the discrimination prohibition will not have been violated.

However, the review of evidence and the final resolution of the discrimination matter will usually take place in the district court in a possible compensation claim case against the employer, if the parties are unable to settle the matter by other means.