KKO solved duty to offer extra job to part-time employee

This article has been published in North-Carelian entrepreneur’s magazine Neuvokas.

The Supreme Court gave 3.2.2017 precedent KKO 2017:4, which handled an obligation to offer extra work, equality between men and women and discrimination.

In case A, during a part-time employment an employer has made apprenticeship contract with another person. The apprentice was not working there before the contract. In addition to that the employer had hired a new employee during A’s maternity leave on permanent basis. New employees sold household appliances like A. The question in this case was, if the apprenticeship concerned such tasks which the employer should have offered first to A. It was also about whether A was discriminated because of pregnancy and giving birth.

The Employment Contracts Act gives priority to those workers who already are employed over those who otherwise seek for the extra work. What comes to the duty to offer extra work the Supreme Court stated that agreement based on apprenticeship is comparable to job contracts.

The parties were unanimous about the fact that during the apprenticeship A had been willing to do extra work. It was obvious that there was not any acceptable obstacle why the employer should not have offered the task to A, because A had done extra work in the same shop that the apprentice. The Supreme Court stated further that the company had intentionally or by negligence violated the obligations of Employment Contracts Act, because it did not offer the available extra work to A. A had therefore a right to compensation which equals about six month’s salary because of damages caused by employer.

What comes to the employee hired during A’s maternity leave the Supreme Court was the opinion that the extra work was not to be offered to A as far as the work was considered temporary and had to be done during A’s maternity leave. The new employee was, however, hired for the time being and thus the Supreme Court concluded that the company had a need for a permanent worker and the work would continue also after A’s maternity leave.

According to the Equality and Non-discrimination Act the employer violates the law if he in case of employment, training or other tasks and contracts puts the employee or trainee to discriminatory position because of pregnancy, giving birth or other sex related matter. The Supreme Court stated the employer put A into an unfavourable position because of her pregnancy and birth giving when they did not offer A the extra job. The Supreme Court also considered the company guilty for discrimination and A was entitled to get 5 000 euros as compensations. Both the District Court and Court of Appeal had abandoned A’s suit.