Fair Compensation for Failure to Extend the Employment Contract due to Pregnancy

An employer who had failed to extend the employment contract of a pregnant employee on the grounds of childbirth and care to her child, had to pay the employee a fair compensation for having discriminated between men and women .
An employer had entered into an employment contract with an employee for a period of one year. One month prior to termination of the employment contract, the employer gave the legally required notice on whether or not to extend the employment contract after expiration of the agreed term: the employment contract would not be extended. The next day, the employer’s regional manager informed the employee about it in a WhatsApp message, on ground of the employee’s frequent absenteeism and the care to her child after child birth, and the expected poor work-life balance as a result.
The employee then argued that the employer had illegally discriminated based on sex by not extending the employment contract due to pregnancy. Under the law, this implied that the non-extension of the employment contract was the result of seriously culpable behaviour on the part of the employer and that the employer therefore owed the employee a fair compensation. To that extent she submitted a claim to the Sub-district Court to order the employer to pay a fair compensation of over 35,000 EUR gross.
The employer objected, saying that the regional manager, who had left employment in the meantime, had sent the message out of resentment towards the employer and that the real reasons for discontinuation of the employment contract were the employee’s very frequent absenteeism and the fact that, despite numerous reminders, she still had failed to obtain the compulsory social hygiene diploma.
The Sub-district Court ruled that there was a suspicion of a prohibited discrimination between men and women and that, for that reason, it was up to the employer to prove differently.
The frequent absenteeism would refer to the fact that the employee had reported sick five times to look after her boyfriend’s and foster mother’s children. But the Sub-district Court chose to ignore this, since two of the employer’s executive officers had made reassuring remarks regarding the consequences of the sick reports for extension of the employment contract.
As for the failure to obtain the diploma, the Sub-district Court established that it concerned a four-hour training course and that, even though the employer had insisted on obtaining the diploma, there was no evidence that it was also a condition for extension of the employment contract.
Thus, according to the Sub-district Court, there had been a prohibited discrimination based on sex and fair compensation shall be due. This fair compensation should compensate for the employer’s seriously culpable behaviour. In determining its extent, all the circumstances of the specific case should be regarded. The Sub-district Court considered it plausible that it had costed the employee a year’s income due to the failure to extend the employment contract: an amount of over EUR 25,000. On the other hand, the employee would also be entitled to a maternity allowance, a childbirth benefit and an unemployment benefit, leaving a loss of income of over € 13,000. Moreover, it was reasonable to assume that the employee would quickly find another job. Therefore, the Sub-district Court assumed a loss of income of EUR 7,500. The seriousness of the culpable conduct, in which an elementary fundamental right had been violated, was a reason for the Sub-district Court to ultimately set the fair compensation at a gross amount of EUR 12,500.

Failure to offering a new employment contract due to pregnancy or childbirth is a prohibited discrimination on ground of sex. In many cases it is quite difficult for an employee to prove that pregnancy or childbirth are the real reasons for not offering or not extending the employment contract, even if it is the employer who has to prove differently once the suspicion of a prohibited discrimination has arisen. In fact, only in cases where the employer “foolishly” put some of it in writing, it will really be possible for female employees to successfully bring action against an employer's discriminatory decision.