Removal from a managerial position on grounds of maternity

The Defender agreed with the conclusion that if a senior employee can be removed under the Labour Code, the employer can generally do so at any time, for any reason and even without giving a reason. However, the Defender emphasised that, even in such a situation, the employer was bound by the duty of non-discrimination and could therefore not remove an employee on discriminatory grounds, for example on grounds of maternity. In this conclusion, the Defender relied inter alia on the case-law of the Supreme Court, which had opined analogously on termination of employment during the trial period. She also stated that a mere removal from office would not be the only unfavourable treatment if discrimination was found. The second adverse consequence is that the complainant could not to return to her original job after her maternity leave despite the fact that this is guaranteed by Section 43 of the Labour Code; instead, she would have to accept the offer of some other (lower) position generally corresponding to her qualification and employment contract, and her employment could even be terminated on the grounds of redundancy if she refused that offer.

In assessing whether discrimination had occurred, the Defender referred, on a subsidiary basis, to Section 133a of the Code of Civil Procedure, which lays down the concept of “shared onus of proof”. Considering that the complainant was removed from office only two days before going on maternity leave, unfavourable treatment was obvious prima facie. The Defender was of the opinion that the complainant would be able to bear her onus of proof in potential litigation and it would be up to the employer to prove non-discriminatory grounds for her removal. The Defender therefore requested that the employer provide a statement on the complainant’s case in order to ascertain whether or not her removal had been motivated by different, non-discriminatory grounds (for example, poor work results, etc.). The employer explained in its statement that the complainant’s superior had officially substantiated her conduct by ensuring proper operation of the relevant department.

Since the employer did not provide any other reason for the removal, and did not further specify the proper operation of the department, the Defender concluded that the actual reason consisted, beyond reasonable doubt, in the complainant’s pregnancy and the employer had been guilty of direct discrimination in the sense of Section 2 (3) of the Anti-discrimination Act. The complainant brought the case to the courts, lodging an anti-discrimination action. The court is yet to decide on the case.