By Elsebeth Aaes-Jorgensen, Firm: orrbom Vinding
This case was about a woman who was employed as a replacement, working on an on-call basis with no fixed working hours. Shortly after announcing that she was pregnant, she received fewer shifts than previously. The Equal Treatment Board had to assess whether this was reflective of unlawful discrimination.
For a period of a few months before announcing that she was pregnant, the replacement worker worked slightly more than 25 hours a week on average. One month after announcing her pregnancy, the woman was asked to fill out a statement about whether she wanted permanent employment. When replacement workers reach six months of seniority, the applicable collective agreement required the employer to offer permanent employment. The woman did not fill out the statement.
On the same day, the employer was contacted by the woman's representative, who stated that the woman would like to be hired on a permanent basis. She had only refused permanent employment because she had been told by the employer that this would mean fewer shifts.
In the next period, the woman had far fewer shifts (coming down to 21 hours in one month), and after that she was not used at all. The woman believed this was in violation of the Equal Treatment Act.
The employer tried to find a solution and offered the woman permanent employment in the form of part-time positions on several occasions, but up to a maximum of 120 hours a month. All the employer’s suggestions were rejected by the woman who continued to demand a weekly working time of 37.5 hours, although positions exceeding 30 hours per week were not normal in the industry.
A majority on the Equal Treatment Board ruled that there was no basis for considering the course of events as a dismissal or other discriminatory treatment, since the woman only worked as a replacement with a variable working pattern and without fixed working hours. Section 9 of the Equal Treatment Act was therefore not violated.
The minority, on the other hand, believed that because of, among other things, the marked decline in hours that occurred shortly after informing the employer that she was pregnant and the inadequate form of the offer of permanent employment, the woman had experienced less favourable treatment during her pregnancy.
In light of the majority's opinion that s9 of the Act was not violated, the shared burden of proof applied. Here, the Equal Treatment Board came to the conclusion that the woman had not established any facts that indicated that her pregnancy had been instrumental in the reduction in the number of hours worked or the fact that she was not permanently employed.
Unlike permanent employees, replacement workers, on-call workers and the like have the opportunity to freely refuse shifts. As a result, in these situations, there will typically not be an ongoing employment relationship that extends beyond each specifically agreed shift.