05/05/2014 Termination due to the worry that the employee might become pregnant – prohibited (gender based) discrimination

According to Austrian labour law no reasons have to be named when an employer is terminating a contract with an employee. An exception to this regulation are employees with special protection, including pregnant employees.

Recently, the Supreme Court of Justice (“Oberster Gerichtshof”) has decided in its verdict (8 OB A 81/3i) that a termination of a non pregnant employee, in which the employer raises his concerns about a possible pregnancy is also a prohibited discrimination.

In this particular case the employee informed her employer about being pregnant. After doing so, the employer-employee relationship worsened: The employer told his employee that he wouldn’t have hired her, if he had known that she will become pregnant at some point.

The employee then miscarried and was on sick leave for 3 weeks. After returning, the employer terminated the employee’s contract, stating that it is very likely that she will become pregnant again and this is related to high costs for the employer. As a consequence, the employee claimed indemnification for the loss of earnings and the personal damage caused.

The Supreme Court of Justice approved this claim, stating that the employer’s utterance is a prohibited direct discrimination according to § 3 subparagraph 7 of the Equal Treatment Act (“Gleichbehandlungsgesetz”), because the affected person has been treated disadvantageous due to her gender. A prohibited direct discrimination also takes place, if criteria are taken into consideration, which can be only fulfilled by one gender. To sum it up, if an employer’s termination is based on the assumption that an employee might become pregnant soon, this can be also seen as a prohibited direct discrimination.

According to the Supreme Court of Justice, an expansion of a de facto special protection for all young women, who potentially might become pregnant, is not to be worried about, because only a concrete verification of the employer’s motive can meet the conditions of prohibited discrimination.

Already some years ago the Supreme Court of Justice decided – considering the EU-directive on equal treatment – that a termination during employment probation period can lead to the same consequences as an employer’s termination or an employer’s notice. Consequently, a termination during employment probation period which is based on prohibited discrimination is also illegitimate, meaning that the employment contract remains valid.

In practice it is advisable to document the reasons for separation, in order to counteract the possibility of being filed a complaint of discrimination.

If you have any questions, please just send a mail to welcome@huebner.at or contact one of our specialists directly.

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