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29 January 2020
The Board of Equal Treatment recently concluded that the fact that a replacement worker in a cleaning company received fewer shifts during her pregnancy did not constitute gender discrimination.
The case concerned a woman who had been employed as a replacement, working on an on-call basis with no fixed working hours. Shortly after announcing that she was pregnant, the worker received fewer shifts than before. The Board of Equal Treatment considered whether this was reflective of unlawful discrimination.
For a period of a few months before announcing that she was pregnant, the replacement worker had worked slightly more than 25 hours a week on average. One month after announcing her pregnancy, she was asked to fill out a statement about whether she wanted permanent employment. When replacement workers reach six months of employment, the applicable collective agreement requires employers to offer permanent employment. The worker did not fill out the statement.
On the same day, the employer was contacted by the worker's representative, who stated that she would like to be hired on a permanent basis. The worker had refused permanent employment only because she had been told by the employer that this would mean fewer shifts.
In the next period, the worker had far fewer shifts (21 hours in one month) and after that she was not used at all. She believed that this violated the Act on Equal Treatment of Men and Women.
The employer tried to find a solution and offered the worker permanent employment in the form of part-time positions on several occasions, but only up to a maximum of 120 hours a month. All of the employer's suggestions were rejected by the worker, who continued to demand 37.5 hours of work a week, despite the fact that positions exceeding 30 hours a week were unusual in the industry.
A majority on the Board of Equal Treatment ruled that there was no basis for considering the course of events as a dismissal or other discriminatory treatment, since the woman had worked as a replacement with a variable working pattern and without fixed working hours. Therefore, Section 9 of the Act on Equal Treatment of Men and Women had not been violated.
On the other hand, the minority of the board believed that due to, among other things, the marked decline in hours that had occurred shortly after the worker had informed her employer that she was pregnant and the inadequate form of the offer of permanent employment, the worker had experienced less favourable treatment during her pregnancy.
In light of the majority's opinion that Section 9 of the act had not been violated, the shared burden of proof applied. The Board of Equal Treatment concluded that the worker had not established any facts that indicated that her pregnancy had been instrumental in the reduction of her working hours or the fact that she had not been permanently employed.
Employers should remember that unlike permanent employees, replacement and on-call workers can freely refuse shifts and that, as a result, there will typically not be an ongoing employment relationship that extends beyond each specifically agreed shift.
For further information on this topic please contact Elsebeth Aaes-Jørgensen at Norrbom Vinding by telephone (+43 35 25 3940) or email (email@example.com). The Norrbom Vinding website can be accessed at norrbomvinding.com.
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