HelHo 2009:10

The issue here was whether a representative of an employer can be guilty of work discrimination, as set forth in Section 3 of Chapter 47 of the Finnish Criminal Code (39/1889, as amended) (the “Criminal Code”), by temporarily laying off an employee on the employee’s return from family leaves, and whether a justifiable cause for such discrimination existed in the case. In the case, B, who had been working at a company since 1998, had been on a two-year maternity leave between 2004 and 2006 and on a subsequent nursing leave after the maternity leave ended. During these family leaves, the company had, initially temporarily and subsequently on a permanent basis, employed C to carry out tasks that B had been responsible for before the family leaves. Upon her return to work in early 2007, B was temporarily laid off by A, the CEO of the company. A claimed that the work that C had been tasked with doing had changed while B was on the family leaves and that B could therefore not return to her old position. A further stated that the company was not able to offer B another position due to the company’s financial difficulties, and more specifically, that the company was not able to simultaneously employ both B and C. According to the Criminal Code, an employer, or a representative of the employer, that during employment without an important and justifiable reason puts an employee in an inferior position because of the employee’s gender, is guilty of criminal work discrimination. The Court of Appeal held that B had under the Finnish Employment Act (55/2011, as amended) the right to return to her old position after her family leaves ended or, if this was not possible, be offered other work in accordance with her employment contract. The Court further held, in accordance with A’s own statement, that the company could have trained B for the new type of work within only a brief period of time and, therefore, that laying off B and continuing to employ B’s substitute C (that had been made a permanent employee just before B’s return) was based on B’s gender and her family leaves. Due to these reasons, and despite the company’s financial difficulties, the Court held that there was no justifiable reason for the discrimination and, therefore, found A guilty of criminal employment discrimination. A was sentenced to pay 30 days-fine and damages to B of 1,200 Euros.