Suspicion of discrimination based on family responsibilities when terminating an employment contract (TAS 512/2022, issued on 9 May 2023)

A worked as a cleaner in a property services company for about one month. A took temporary child care leave to care for a sick child under the age of 10, first for 4 working days and again for one working day. A contacted the Regional State Administrative Agency for Southern Finland after A's employment contract had been terminated after these absences. The Regional State Administrative Agency transferred the matter to the Ombudsman for Equality by virtue of the Administrative Procedure Act, since the matter involved a suspicion of discrimination based on parenthood and family responsibilities. 

The Ombudsman for Equality assessed the matter from the perspective of the prohibitions of discrimination provided for in the Equality Act and found that the chronological connection of the events created an assumption of discrimination in the matter. It was also noteworthy that, even though the employer pleaded to the employee's unsuitability for working at the company, it proposed changing the employee's employment contract from a full-time contract to an on-demand contract one day before the termination.  

Rules of law applicable to the matter

According to chapter 1, section 4, subsection 4 of the Employment Contracts Act, the employment contract may be cancelled by either party during the trial period. The employment contract may not, even by virtue of the Employment Contracts Act, be cancelled on discriminatory or otherwise inappropriate grounds with regard to the purpose of the trial period. 

According to the government proposal for the Employment Contracts Act (HE 157/2000), such cancellation must be related to the employee's person and performance. An employment contract may not be cancelled on discriminatory grounds even during the trial period. 

Section 7 of the Act on Equality between Women and Men (Equality Act) prohibits direct and indirect discrimination based on gender, which includes treating someone differently on the basis of parenthood or family responsibilities. Section 8 of the Equality Act includes more detailed provisions on the prohibition of discrimination in working life and subsection 1, paragraph 5 of the section prohibits employers from terminating an employment relationship on discriminatory grounds, such as on the basis of parenthood or family responsibilities. 

According to section 9a of the Equality Act, if a person considers that they have been a victim of discrimination and presents the matter to a court of law or to a competent authority, they must present facts that give cause to believe that the matter is one of gender discrimination. In order to disprove the assumption of discrimination, the employer must prove that there has been no violation of gender equality but that the action – in this case, the termination of the employment contract – was for an acceptable, non-discriminatory reason.

According to chapter 4, section6 of the Employment Contracts Act, if the employee's child or some other child who is under 10 years of age falls suddenly ill, the employee shall be entitled to temporary child-care leave for a maximum of four working days at a time in order to arrange for care of the child or to care for the child personally. The employee shall notify the employer of temporary child-care leave and of its estimated duration as soon as possible. If the employer so requires, the employee shall present a reliable account of the grounds for temporary child-care leave.

According to section 12 of the collective agreement for the property services sector, which is binding on the employer in question, if an employee's child under the age of 10 falls suddenly ill, the employee shall receive pay according to section 11 of the agreement if a short absence is necessary for caring for the child or arranging such care, the care or its arrangement will take 1, 2, 3 or 4 days, and if the employee has notified the employer of the absence and, if possible, its duration without delay and delivered equivalent proof of the child's illness as required for the employee's own illness.

Assessment of the case 

A's employment contract was cancelled by the employer during the trial period.  The matter came down to whether the employer's cancellation of the employment contract during the trial period was discriminatory and based on the employee's family responsibilities, or did the employer have non-discriminatory grounds under the Employment Contracts Act for terminating A's employment contract during the trial period. 

Neither the employer nor the client company whose premises A had been cleaning had given A negative feedback for A's work before the termination of A's employment. On the contrary, A said that A's manager had told A that the illnesses of A's children were a problem, and that they did not want to get a phone call in the morning saying that A cannot come to work.

A had notified A's manager of A's final absence by both SMS and telephone call. A did not take the child to a doctor, however, but received care instructions for the infection from a nurse via the Maisa service.  The employer said that it required both a notification of absence to the manager and the proof specified in the collective agreement for evaluating the basis for salary payment and for assessing the permissibility of the absence. 

This was A's first job in Finland. The parties disagreed on the content and scope of the orientation related to absences due to illness provided to A, who does not speak Finnish. The parties expressed conflicting views on whether A was aware of the practices concerning absences and on why A only provided proof for A's first absence too just one day before the termination of A's employment.

According to the report, A's manager offered A another job with another client as an alternative to cancellation during the trial period. According to A, this was an on-demand contract by which A could have been called up to work at different client properties. The parties disagree on what happened next. According to the employer, the manager had reconsidered the matter and decided that A was not suitable to continue working for the company. A, on the other hand, says that A asked the manager for more time to consider the new terms and, one day after that, the manager cancelled A's employment contract. 

According to the Ombudsman for Equality, an assumption of discrimination based on family responsibilities was created in the matter, since the termination of employment occurred when the employee had just been absent from work due to their child's illness and the absences due to illness and the nature of their employment contract had been discussed with their manager at the workplace. Therefore, in order to disprove the assumption of discrimination, the employer should prove that it had a non-discriminatory basis related to the employee's person and performance for terminating the employment contract during the trial period. 

Not all of the parties' claims could be verified in the written procedure employed by the Ombudsman for Equality. Ultimately, the employer's conduct and the existence of possible grounds for dismissal related to the employee's person and performance would have to be decided in court. 

According to the Ombudsman for Equality, the fact that the employer had offered A a new employment contract can be considered to demonstrate that the employer's representative did not consider A to be unsuitable just a day before the termination of the employment contract. 

28.08.2023