Continuing a temporary employment contract during family leave

I have a fixed-term employment contract that expires on 31 December 2009. I took my maternity and parental leave on 15 May 2009, and I notified the employer that my leave would end on 15 February 2010. The fixed-term nature of the contract was grounded on substituting a permanent employee who was on study leave. It had come to my knowledge that the employee would extend the study leave until 31 December 2010. The fixed-term contract of my substitute was extended to last until 31 December 2010. My employer did not offer me an extension of my fixed-term contract, although I could have resumed my position as substitute starting 16 February 2010. Was this procedure legal?

This matter is regulated in the Act on Equality between Women and Men. In accordance with section 8(1)(2) of the Act on Equality between Women and Men, the action of an employer shall be deemed to constitute discrimination prohibited under the Act if the employer upon deciding on the duration or continuation of an employment relationship acts in such a way that the person finds herself/himself in a less favourable position on the basis of pregnancy or childbirth or for some other gender-related reason. The provision referred to above shall also apply to situations where the duration or continuation of a fixed-term employment relationship is limited on the basis of a gender-related reason, such as pregnancy or family leave. The principle is that if there is similar work available after the expiration of the fixed-term contract, the employer may not neglect the renewal of the employment contract of a temporary employee on the basis of their family leave. The employer does not have to renew the fixed-term contract, if they have another acceptable reason for it. The provision laid down in the Act on Equality between Women and Men also applies to employment relationships in the public sector. However, public-service positions must always be applied for.

The Ombudsman for Equality has issued statements on discrimination deemed prohibited under the Act on Equality between Women and Men. In statement number 7/55/03, the ombudsman states the following:

“An employer violates the Act on Equality between Women and Men if they upon hiring set a person aside on the basis of pregnancy, childbirth or family leave, or limit the duration or continuation of the employee’s employment relationship for these reasons. The aim of the provision is to protect employees from unfavourable treatment based on their pregnancy or family leave. When investigating the case, it must be determined whether the employment relationship would have been continued if the same criteria had been applied to the employee than to those employees who were not pregnant or on family leave. The fixed-term nature of the employment does not constitute an acceptable reason for replacing a candidate at hiring on the basis of e.g. family leave. Thus, the fixed-term contract of an employee who is on family leave must be renewed, if the work continues as such.” 

Your employer had no right to neglect the renewal of your fixed-term contract on the basis of your maternity leave or parental leave. Your employer should have extended your fixed-term contract from 1 January 2010 to 15 February 2010. In this case, your employer violated the Act on Equality between Women and Men and your are entitled to claim compensation by virtue of the Act. However, if your employer can prove that the decision was grounded on something else, not on your family leave, the procedure was lawful.