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Fixed-term employment was no longer offered to a nurse after she announced her intention to take child-care leave (TAS 274/2015, issued on 3 May 2016)

Fixed-term employment was no longer offered to a nurse after she announced her intention to take child-care leave (TAS 274/2015, issued on 3 May 2016)

The Ombudsman for Equality found that a person working as a nurse on a surgical ward was subjected to discrimination prohibited in the Equality Act when fixed-term contracts were no longer offered to her after she announced that she intended to take child care leave following parental leave.

The nurse had been working on the surgical ward as a substitute for four and a half years without interruption. Over this period, eight fixed term employment contracts had been drawn up for her on different grounds. In late 2014, she took maternity and parental leave, and in summer 2015, she told her employer that she wished to take some child care leave. Child care leave was granted to the nurse for four days, after which the hospital district announced that it could no longer offer work for her.

Subsequently, the fixed-term employment relationships of eight other substitute nurses in total on the surgical and anaesthetic ward were extended. Seven of the substitute nurses had been working on the wards for a shorter period than the nurse who applied for child care leave, two of the most recently hired ones for less than a year. Not one of the substitute positions were advertise openly, as they were offered to the employees directly. On previous occasions, the same practice had also been followed in the case of the nurse who requested for a statement.

According to the information submitted to the Ombudsman for Equality, it was obvious that after October 2015, work was available for several substitute nurses on the surgical ward and the anaesthetic ward. From the justifications given for opening the substitute positions, it is not possible to conclude  to whom this position would most likely have been offered, as the justifications varied, and some of the positions were based on the absences of several persons. The Ombudsman for Equality finds it highly probable that the fixed-term contract would have been offered to the nurse who had requested the statement if she had gone directly back to work after parental leave, rather than informed the employer about her intention to take child care leave for a year. A suspicion of discrimination would thus appear to arise in the matter. In order to disprove the suspicion, the hospital district would have to produce another, acceptable reason for putting the nurse in a disadvantaged position.

The hospital district justified the situation by stating that the employee had not reported as a jobseeker on the Kuntarekry website. However, this had never been required before; on the contrary, the employee had been led to believe that she would not have to take any action to continue her employment contract. In addition, the hospital district justified its practice of recruiting substitute nurses by correct allocation of skills.

However, the nurse who requested the statement had been given no feedback indicating that her work was inadequate. She was qualified to both work in a monitoring role and to look after the instruments in many types of operations. She had been on call since 2011, and according to her report, she had been rotated in different roles and also between wards. The fact that her contract had been renewed seven times in a row over a period of more than four years also speaks for her good deployability.

The Ombudsman for Equality found that in the information it provided, the hospital district had not produced another acceptable reason as required in the Equality Act that would explain why a different practice was applied to the employee.

20.01.2017