Law & More recently counseled an employee of the Wijeindhoven Foundation in her application to the Human Rights Board (College Rechten voor de Mens) as to whether the foundation made a prohibited distinction on the basis of sex because of her pregnancy and to handle her discrimination complaint negligently.
The Human Rights Board is an independent administrative body that, among other things, adjudicates in individual cases whether there is discrimination at work, in education or as a consumer.
Stichting Wijeindhoven is a foundation that carries out work for the municipality of Eindhoven in the field of the social domain. The foundation has about 450 employees and operates on a budget of EUR 30 million. Of those employees, some 400 are generalists who maintain contact with some 25,000 Eindhoven residents from eight neighbourhood teams. Our client was one of the generalists.
On 16 November 2023, the Board issued its verdict.
The employer made prohibited gender discrimination
In the proceedings, our client alleged facts that suggested gender discrimination. The Board found, based on what she submitted, that her performance met the requirements. Furthermore, the employer never called her to account for deficiencies in her performance.
The employee was absent for some time due to pregnancy and parenthood. Otherwise, she was never absent. Prior to absence, she still received approval to attend training.
A day after she returned, the employee had a meeting with her supervisor and her human resources officer. During the conversation, it was indicated that the employee’s employment would not be continued after the end of her temporary contract.
The employer later indicated that the decision not to renew would be due to lack of visibility in the workplace. This is strange because the employee held an itinerant position and thus operated mainly on an individualistic basis.
The Board finds that:
‘the defendant failed to prove the (absence related to the employee’s) pregnancy was not the reason for not renewing the employment contract. The defendant therefore made direct gender discrimination against the applicant. Direct discrimination is prohibited unless a statutory exception applies. It has neither been argued nor shown that this is the case. The Board therefore finds that the defendant made prohibited gender discrimination against the applicant by not entering into a new employment contract with the applicant.”
Careless handling of discrimination complaint
It was not known within Wijeindhoven where and how to file a discrimination complaint. Therefore, the employee filed a written discrimination complaint with the director and manager. The director responded that he had made internal enquiries and, on that basis, did not share the employee’s point of view. The director points out the possibility of filing a complaint with the external confidential adviser. A complaint is then filed with that confidential adviser. The latter then informs that the defendant is at the wrong address. The confidential counsellor informs her that he does not do any truth-finding, such as hearing both sides of the argument or conducting an investigation. The employee then asks the director again to deal with the complaint. The director then informs her that he maintains his position because the complaint submitted contains no new facts and circumstances.
After making it known that further action had been taken with the Human Rights Board, Wijeindhoven indicated its willingness to discuss continued employment or compensation on condition that the complaint to the board would be withdrawn.
The Board notes the following in this regard:
“that, despite the applicant’s highly reasoned and concrete discrimination complaint, the defendant did not investigate the complaint further. In the opinion of the Board, the defendant should have done so. In such a case, the director’s very succinct response cannot suffice. By ruling, without a hearing, that there was insufficient substance for a discrimination complaint, the defendant failed in its obligation to handle the applicant’s complaint carefully. Moreover, a discrimination complaint always requires a reasoned response.”
Response from Wijeindhoven
According to the Eindhovens Dagblad, Wijeindhoven’s response is: “We take this judgement seriously. Discrimination in any form goes straight against our standards and values. We regret that we unwittingly gave the impression that we did not renew a contract due to pregnancy complaints. We will take the advice to heart and examine what improvement steps we need to take.”
Response from Law & More
Law & More welcomes the verdict of the Human Rights Board. The firm is happy to contribute to fighting discrimination. Discrimination related to pregnancy should be fought to promote gender equality at work.