KHO 2013:46

The issue here was whether the concept of presumption of discrimination, as set forth in the Finnish Equality Act (609/1986, as amended) (the “Equality Act”), applied in the case where a less-merited male applicant had been appointed over two female applicants, and whether there was a justifiable reason for discrimination. In the case, the Regional Council of Lapland, a politically steered joint municipal board, had appointed V, a male applicant, as its director of development. Two female applicants, E and H, had disputed the council’s decision to appoint V on the basis that the appointment was based on V’s political affiliations and also because the decision breached the Equality Act. The Supreme Administrative Court considered (i) whether the threshold for presumed discrimination had been exceeded and, if this were the case, (ii) if there were grounds for the rebuttal of the presumption. The Court found that both E and H had been adequately qualified for the position and had more merits relevant to the position than V. On this basis, the Court held that E and H had sufficiently shown that they had not been appointed because of their gender and that, as a result, a presumption of discrimination, as set forth in Section 8 of the Equality Act, had arisen. Under the Equality Act, to rebut a presumption of discrimination an employer must show that its actions are attributable to a justifiable reason not connected to gender or that the actions were based on weighty and acceptable grounds related to the nature of the job or the task. The Regional Council of Lapland claimed that, in this case, the justifiable reason not connected to gender was V’s having more socio-political experience. The Court, however, held that socio-political experience was not specifically mentioned in the pre-established selection criteria for the position and was, therefore, part of the general merit assessment of the applicants. As discussed, the Court had found that, based on this assessment, both E and H had more merits relevant to the position than V. Therefore, the Court held that V’s socio-political experience was not a justifiable reason for his appointment. For these reasons, the Supreme Administrative Court agreed with the earlier holding of the Administrative Court of Rovaniemi that the decision of the Regional Council of Lapland to appoint V as its director of development was made in breach of the Equality Act and, therefore, ordered the decision to be annulled.