The effect of family leave on the right to study (TAS 271/2013, issued on 16 October 2013)

The Ombudsman for Equality was contacted by a student who had been on maternal and parental leave for two years and who wanted to spend an additional year taking childcare leave. She had received a notice from her university of applied sciences stating that she would forfeit her right to study unless she went back to her studies. The Ombudsman was asked to clarify whether the university's notice and the provision on the duration of studies in the Polytechnics Act were inconsistent with the Equality Act.

The Equality Act prohibits the different treatment of someone on the grounds of pregnancy or childbirth. The university could not, without contravening the prohibition of discrimination in the Equality Act, act in such a way that a student would be treated unfavourably on the grounds of pregnancy, maternity or paternity leave or other family commitments, when taking a decision on the right to study or the duration of studies, for example.

Under the provision in the Polytechnics Act on duration of studies, a student may be absent for two academic years in total. The law also states that a student who fails to complete his or her studies within the period of time laid down shall forfeit his or her right to study, unless the university grants him or her an extension to finish the studies.

The Ombudsman asked for statements from the university of applied sciences in question and from the Ministry of Education and Culture. The University stated that maternity and parental leave had always been deemed by the college an acceptable reason for granting an extension to finish studies. It had evidently been impossible to state sufficiently clearly to the enquirer, that, although under the Polytechnics Act an extension to a period of absence could not be applied for, an extension to complete studies could.  The Ombudsman stated that in this case the student was not being treated unfairly for the present and that there was no barrier to childcare leave lasting a year in accordance with her wishes.

According to the statement by the Ministry of Education and Culture, the purpose of the provision on absence in the Polytechnics Act is to give students the flexibility they need to complete their studies. The Act does not mention maternity, paternity or parental leave as acceptable grounds for absence, because it was not considered appropriate to list all the acceptable grounds for absence.

In her statement, the Office of the Ombudsman for Equality requests the Ministry of Education and Culture to consider standardising the provisions on absence in the Polytechnics Act, as has been the case with the Equality Act. It is categorically and clearly stated in the Universities Act that the duration of studies does not include leave due to maternity, paternity or parental leave. The provision guarantees the equal treatment of students. The Ombudsman is of the view that the same sort of clear statement in the Polytechnics Act would guarantee that students at universities of applied sciences would also be treated equally in matters relating to absence due to maternity, paternity or parental leave.