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Suspected case of discrimination: returning to the same duties after family leave (TAS 509/2018, issued on 7 May 2019)

Suspected case of discrimination: returning to the same duties after family leave (TAS 509/2018, issued on 7 May 2019)

Woman A asked the Ombudsman for Equality to investigate whether she had been discriminated against in a manner that violated the Act on Equality between Women and Men (hereinafter the Equality Act) when, after returning from her family leave, she was not allowed to return to the same duties that she had had before her family leave.

A had worked for her employer since 2008. According to A’s enquiry, at the beginning of 2017 she was promoted to a supervisory position after the resignation of the person who had previously held the position. A went on family leave from this position in the autumn of 2017 and a substitute was hired in her place. When A returned from her family leave to go back to work in the autumn of 2018, her substitute had been given a permanent position as well as A’s duties. According to A, the duties that her employer offered to her were less demanding than the ones that she had had before going on family leave.

Assessment of the case

The Ombudsman for Equality noted that the undisputable fact in the case was that, after her family leave, A had not been allowed to return back to the supervisory duties that she had had before her family leave. The Ombudsman for Equality stated that the case primarily centred around how one interprets chapter 4, section 9 of the Employment Contracts Act, which concerns the right of an employee to return to their formed duties. The assessment focused on whether the employer had an acceptable reason for not allowing A to return the duties that she had had before her family leave.

The authority of the Ombudsman for Equality is limited to supervising compliance with the Equality Act, which means that the Ombudsman cannot take a stand on a party’s compliance with any other Acts, such as the Employment Contracts Act. However, taking note of the aforementioned provision of the Employment Contracts Act was necessary for the assessment of whether A had been discriminated against in a manner that violated the Equality Act due to her family leave.

According to the Equality Act, employees have the right to return to their former or similar duties after the end of their family leave. In the case of A, the former duties referred to in the Employment Contracts Act were the supervisory duties that she had had before she went on family leave.

Since A was not allowed to return to these duties, the case gave rise to a presumption of discrimination. To counter this presumption of discrimination, an employer must demonstrate that, due to an acceptable reason, their employee could not have returned back to the duties that they had had before their family leave and that the employee had been offered duties that were as close to their previous duties as possible or, if this is not possible, other duties that are in line with their employment contract.

An acceptable reason can be, for example, that the duties no longer exist as such due to a restructuring process that has been done in the company. The Equality Act also does not prevent an employer from restructuring their operations in the manner that they feel is most appropriate, so long as said operations are not restructured on a discriminatory basis. This means that an employer cannot attempt to circumvent their employee’s right to return by creating a new position with a different title if the duties of said position are practically the same as the duties of the employee who has been on family leave.

According to the employer, the supervisory position that A had before her family leave was only temporary in nature due to an impeding organisational reform and that the position ceased to exist during A’s family leave after the conclusion of the organisational restructure. According to the employer, A had been aware of the temporary nature of the position. In addition, the employer noted that the new supervisory position, to which the substitute employee was promoted in a permanent capacity, was a new position that had a greater requirement level.

According to A, when she went on family leave, she had assumed that she would return to the same supervisory position. In addition, A stated that no agreement had been made on the temporary nature of the position. The duties included in the position still existed when her family leave ended, but they had been transferred to the substitute in almost their entirety.

The Ombudsman for Equality notes that the temporary nature of a position can constitute an acceptable reason for not offering the same duties that a person had before their family leave when they return from said family leave. In this case, to be able to counter the presumption of discrimination, the employer must be able to demonstrate that an agreement had been made on the temporary nature of the position that A had had before her family leave.

If the employer cannot prove that said duties were temporary in nature, the next step in the process will be to review whether the duties that A had previously performed still existed at the time when she returned from her family leave as well as the similarity of the contents of the supervisory role that A had had before her family leave and the new supervisory position. To counter the presumption of discrimination for this part of the case, the employer would need to demonstrate that the supervisory duties performed by A and the new supervisory position differ substantially.

The written statement procedure does not allow for the Ombudsman for Equality to take a stand on any evidentiary questions that apply to the assessment of the temporary nature of the position or whether A’s previous duties still existed at the time when she returned from her family leave. The interpretation of the Equality Act and Employment Contracts Act, the review of the evidence, and the final resolution of the discrimination matter will, ultimately, take place in a district court in a possible compensation claim case against the employer where evidence may also be presented on the matters that remain contradictory on the basis of the written reports made by the parties.

31.12.2019