“I feel that my rights were ignored when filling the vacancy”

Kaisa, 37, graphic designer

I applied for a temporary position as a graphic designer in a large company. The position was for a maternity leave substitute. I got to the final stages of the interviews and also did a work sample. There were two applicants in the end, and the other one was selected for the job. It probably helped that he already knew people from the department.

Nevertheless, I was hired as a summer worker to stand in for another graphic designer. In this job, I also assisted the team responsible for layout, to which I had originally applied. After the summer, I was hired on a new fixed-term contract when another team needed help producing digital materials. I worked as an advertising coordinator. In addition to my own duties, I assisted the layout team whenever I had time.

After some changes in the department, my supervisor suggested I move back to my old team , while the person standing in for my summer holiday take up my current duties. I began as an advertising coordinator and continued to assist the layout team whenever needed.

The temporary position I originally applied for ended, and the employee returned from maternity leave. Positions were shuffled within the department, and my team’s supervisor changed. The person who had been on maternity leave resigned, and no one had been hired to replace her. An employee in the department joined the layout team, while I continued to assist them. I had a total of 5 fixed-term contracts, the longest of which was for 8 months. I alternated working under two different supervisors.

I told the employer at a fairly early stage that I would be taking maternity leave. A vacancy opened for a permanent position as a graphic designer in the department, which I applied and was interviewed for. However, no one was hired in the end. My coworkers questioned why I wasn’t given a permanent position despite having been with the company for so long. While this was going on, the department was hiring other people for permanent positions. I contacted HR about the matter and spoke with our HR coordinator.

Just before my maternity leave was set to start, I had to take sick leave. The company had already hired my replacement, who I’d then helped get oriented to the job. While I was on maternity leave, another vacancy opened for a permanent graphic designer position, which I applied for. I wasn’t even called in for an interview. In my opinion, my rights have been ignored in filling the vacancy, and I have now consulted a lawyer from the Lakikaveri service for a second opinion and advice.

The story is based on real events, but the details have been changed for privacy reasons.

What does Lakikaveri say?

An employment contract is in force until further notice unless it is made for a fixed term for a justified reason. A fixed-term employment contract made at the employer’s initiative without a justified reason is considered to be in force until further notice.

The use of repeated fixed-term contracts is not permitted when the number of fixed-term employment contracts or their total duration or overall nature indicates that the employer’s labour needs are permanent.

Kaisa was hired for a temporary position as a summer worker to stand in for a graphic designer. If the reason for the temporary position was to stand in for an employee on annual leave, the employer had a justified reason to sign a fixed-term contract with Kaisa.

After the summer holidays ended, Kaisa was hired for four fixed-term contracts. The employer must demonstrate for each fixed-term contract that it had a justified reason to hire Kaisa only for a fixed term. If the employer did not have a justified reason to sign a fixed-term contract, the termination of Kaisa’s fixed-term employment must be treated as a termination of employment on the part of the employer, and Kaisa may be entitled to compensation for the unjustified dismissal.

It may also be necessary to separately evaluate whether the number of fixed-term employment contracts or their total duration or overall nature indicates that the labour need is permanent. The use of fixed-term contracts is permitted, and the purpose of the law is to prevent employers from circumventing employees’ employment security. Typical situations involve repeated and successive fixed-term contracts for the same duties and between the same employer and employee.

According to the Government’s proposed bill: Repeated fixed-term contracts between the same parties is not prohibited in situations where, for example, the employer offers a new fixed-term stand-in position for a substitute hired for a fixed term. However, in successive fixed-term contracts between the same parties, the reason for the fixed-term contract must be increasingly weighty as the number of contracts increases. The more successive fixed-term contracts there are, the stronger the assumption that the employer’s need for labour is permanent.

In Kaisa’s case, the first step is to evaluate what was the employer’s justified reason for offering Kaisa a fixed-term contract after her contract as a summer worker ended. In addition to this, may be necessary to assess whether the need for labour was in fact permanent. Based on Kaisa’s story, there may be grounds for requesting that the employer explain its conduct.

During her fixed-term contract, Kaisa had applied for a permanent position as a graphic designer. According to Kaisa, she was not selected because she had told her employer about her upcoming maternity leave. If Kaisa was not selected for the vacancy on the basis of her medical status, the matter may be a case of unlawful discrimination in recruitment. In this case, Kaisa’s description is a sufficient report of the events that warrants the assumption that discrimination has taken place. According to the Equality Act, the employer must, in order to refute this assumption, demonstrate that no discrimination has taken place. Kaisa may be entitled to compensation on the basis of the Equality Act. It is justified to request that the employer explain its conduct.

Juha Teperi
asianajaja, Helsinki
Asianajotoimisto Teperi & Co Oy

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