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Dismissal of an employee after return from family leave (TAS 223/2018, issued on 25 October 2018)

Dismissal of an employee after return from family leave (TAS 223/2018, issued on 25 October 2018)

Woman A requested the Ombudsman for Equality to investigate whether she had been discriminated against in violation of the Act on Equality between Women and Men, when she had been dismissed from X Oy's service.

Woman A returned to her former position from family leave on 2 January 2018. However, soon after her return to work she was dismissed, whereas person B, who had been substituting her during the family leave, was hired to perform the same duties on a permanent basis.

Based on the Equality Act, in principle, employees have the right to return to their former or similar duties after the end of the family leave. 

In accordance with the Equality Act, in dismissal situations employees should be treated in the same way as if they were treated if they had not been on family leave. They must not be placed in a disadvantaged position compared to where they would have been without having taken family leave or in a disadvantaged position compared to other employees.

When a person suspecting discrimination has indicated that she is pregnant or that she has family care obligations, the burden of proof is transferred to the employer if the employer has been aware of the employee's pregnancy or family obligations.  It is the employer's duty to prove that the employee has not been discriminated against. This also applies to other situations than termination of employment or an employee's transfer or lay-off.

When assessing whether being selected for dismissal has been discriminatory, the starting point is that the same criteria and practices have been applied to the employee that would have been applied without the family leave. The employee's situation must be compared to what grounds the company usually uses in dismissal situations and when selecting employees for dismissal. These grounds must not be in conflict with the employment legislation or the prohibitions of discrimination laid down in the Act on Equality between Women and Men. If the employer has deviated from these principles followed by the company in case of the employee who has been on family leave, the employer must prove that there has been another acceptable reason for the dismissal than, for example, the employee's family leave.

Comparing the qualifications of the person dismissed and those continuing at work is one method for investigating whether the person has been discriminated against in a dismissal situation for reasons of gender or family care obligations. In comparison of qualifications, attention is usually given to applicants’ qualifications, previous work experience, and any qualities, knowledge and skills that could prove useful in the job and that can therefore be considered as additional merits.

The use of the comparison of qualifications requires that the work duties and the nature of employment relationships being compared are sufficiently similar to make the persons equal alternatives for dismissal. If the work duties of the person dismissed from the organisation continue or similar duties are performed otherwise at the workplace by persons less qualified for the duties than the person dismissed, it can be considered a case of discrimination for reasons of family care obligations.

Assessment of the case
 

The Ombudsman for Equality stated that even though, within the scope of their competence, the Ombudsman cannot take a stand on whether the Employment Contracts Act has been complied with in the situation, it is necessary to take certain provisions of the Employment Contracts Act into account to assess whether woman A was discriminated against in violation of the Equality Act for reasons of family leave.

Provisions to be taken into account in the case include chapter 7, section 3 of the Employment Contracts Act on financial and production-related grounds for termination and the regulation of chapter 4, section 9 on protection of employee's return to work.

Pursuant to the Employment Contracts Act, the employer is entitled to terminate the employment contract of employees on family leave on financial and production-related grounds only after they have returned to work from their leave. In such a case, one must also take account of the employees’ right to return from family leave to their former duties or equivalent work in accordance with their employment contract, and if this is not possible either, other work in accordance with their employment contract. If the employer's operations have changed during an employee’s absence from work in such a way that after the family leave the employer is unable to offer work as referred to in the Employment Contracts Act or any other work that the employee could manage based on personal professional skills or experience, the employment contract can be terminated on financial and production-related grounds in such a way that the period of notice begins from the date when the leave ends.

In case law, it has been concluded that employees on family leave do not have an absolute right to return to work, but, when reorganising jobs and work duties, the employer shall at least to some extent anticipate the situation with a view to employees returning to work in the near future as well. Jobs and work duties must not be reorganised in an effort to avoid the employer's obligation to take back an employee returning from family leave.

In accordance with the Employment Contracts Act it shall not constitute grounds for termination if the employer has either before termination or thereafter employed a new employee for similar duties even though the employer's operating conditions have not changed during the equivalent period. The hiring of a new employee is illegal if no sufficient change in the employer's operating conditions can be established between the hiring of the new employee employed before termination or thereafter and the termination of the employment contract of the old employee.

Making the employment contract of person B permanent can be considered comparable to employing a new employee, because B initially worked as substitute for A, and B’s fixed-term contract would have ended when A returns to work, had B's employment contract not been made permanent. Therefore, the employer should prove that its operating conditions have changed so much between making the job of B permanent and the termination of one product assistant position that termination was justified. After this, by comparing the qualifications, it can be investigated whether the person has been discriminated against in the termination situation for reasons of family care obligations.

The employer has also justified the termination by stating that A did not have as long experience of using the new ERP system as other persons working in an identical or equivalent role. The Ombudsman for Equality states that according to case law the provision of the Employment Contracts Act concerning protection of the return to work prevents bypassing an employee returning from maternity or parental leave on the grounds that, according to the employer's estimate, the person employed as her substitute manages the partly changed work duties better than the employee returning from leave (Supreme Court 1995:152).

The Ombudsman for Equality came to the conclusion that a suspicion of discrimination thus arises in the matter. Even though woman A was allowed to return to her former job after her family leave, she had been made redundant so soon after her return to work that the right of return to work had not been realised as intended by law.

Unless the employer can prove that A's work duties have ended and that there have been grounds in compliance with the Employment Contracts Act for her dismissal, the situation constitutes a case of discrimination for reasons of family leave referred to in the Equality Act. In such a case, woman A would have been dismissed on financial and production-related grounds even though her work duties have continued to exist or she could have been trained to the changed duties.

01.04.2019