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Suspected discrimination on the basis of pregnancy in temporary agency work in the construction sector (TAS 158/2019, issued on 9 January 2020)

Suspected discrimination on the basis of pregnancy in temporary agency work in the construction sector (TAS 158/2019, issued on 9 January 2020)

Painter A suspected that she had been discriminated against because of her pregnancy. She had not received any fixed-term painting work from employment agency X Oy after having told the agency about her pregnancy. According to A, she had been informed that it was not possible for the agency to offer her work that was suitable for her and that she had been removed from the agency’s lists.

A had been working for X Oy since 2016. Since 28 May 2018, her employment contracts had been almost continuous, with only a couple of days between different employment contracts. The most recent fixed-term contract had been concluded for the period 19 September 2018-27 January 2019.

Assessment of the case

The point of view from which the Ombudsman assessed the case was whether A had been discriminated against in violation of the Equality Act on the basis of pregnancy when her fixed-term employment relationship had not been renewed after 27 January 2019. Under the Equality Act, the action of an employer constitutes discrimination if the employer, upon deciding on the continuation of the employment relationship, acts in such a way that the person finds themselves in a less favourable position on the basis of pregnancy.

A fixed-term employment relationship is terminated normally without giving notice at the end of the fixed period. In principle, the employer is not obliged to extend the fixed-term employment relationship. However, the decision not to extend a fixed-term employment relationship must not be made on a discriminatory basis such as pregnancy.

The employer had justified its action by claiming it was based on concern about the occupational safety and health of A, who was pregnant. According to the employer, no requests for workers had been received from construction sites using materials that were safe for pregnant employees. The employer could therefore not offer A such painting work that would not have endangered her health and the health of the foetus. According to A, the majority of the sites where she had been working had used materials that were safe for pregnant employees.

Under the Employment Contracts Act, if the working duties or conditions of a pregnant employee endanger the health of the employee or the foetus and if the hazard cannot be eliminated from the work or working conditions, the employee shall, if possible, be transferred to other duties suitable in terms of her working capacity and skills for the period of pregnancy. If it is not possible to transfer the employee to other duties suitable for her for the duration of the pregnancy, the employee may be entitled to special maternity leave.

The Ombudsman for Equality examined the situation both from the point of view that the employer could have offered work suitable for a pregnant employee and from the point of view that work suitable for a pregnant employee had not been available.

If there had been suitable work to offer to a pregnant employee, there was no acceptable reason not to renew the fixed-term employment contract under the Equality Act. If that had been the case, the employer had discriminated against A in a manner prohibited by the Equality Act on the basis of pregnancy.

If painting work using safe materials was truly not available, it had to be assessed whether the protection of pregnant employees could be considered an acceptable reason not to renew the fixed-term employment relationship.

The Equality Act has been applied in a way that prohibits discrimination as a result of special protection of employees on the basis of pregnancy. A failure to extend a fixed-term employment contract in a situation where the employment relationship has previously been renewed puts a pregnant employee in a less favourable position and, as a rule, the protection of a pregnant employees cannot be considered an acceptable reason not to extend a fixed-term employment relationship.

However, the question whether there are some situations in which a person can be excluded from recruitment on the basis of pregnancy remains open. Based on legal literature and case law, if certain conditions are met, it may be possible for the employer not to select an employee for a fixed-term position because of her pregnancy. The preconditions for this are that the assignment is of a limited and short duration and cannot be expected to continue or recur and, because of the quality of the work, it is necessary that the same person does it without interruption from the beginning to the end.

According to the Ombudsman’s assessment, A’s situation was not the limited situation described above, in which she would not have had to be considered for an extension of the fixed-term employment relationship because of her pregnancy. The nature of construction work is such that there may be short breaks between the completion of a site and the beginning of work at a new site. However, on the basis of the fixed-term employment relationships A had completed at X Oy, it could be assumed that the work would continue or recur.

The Ombudsman for Equality stated that, on the basis of the report submitted in connection with the matter, it seemed likely that, had A not become pregnant, her fixed-term employment relationship with X Oy would have been extended. The employer had not claimed that painting work was no longer available at all, but had justified the decision by saying that the work would have endangered A’s health because of her pregnancy and, in practice, she could therefore not have done the work. Concern about A’s occupational safety and health could not be considered an acceptable reason under the Equality Act not to extend the fixed term employment relationship. A could have been entitled to special maternity leave and the employer could have recruited a substitute for her. According to the Ombudsman’s assessment, A had been discriminated against in violation of the Equality Act on the basis of pregnancy.

However, the review of the evidence and the final resolution of the discrimination matter will usually take place in a district court in a possible compensation claim case against the employer, if the parties are unable to settle the matter by other means.

03.04.2020