Employee was not judged by her cover

A skilled worker in a kindergarten had fibromyalgia and was the sole carer for her chronically ill son. Her own disability and the needs of her son caused a lot of sick leave.

During the employment, she had acted as a whistleblower and reported internally on the following up on the children, lack of supervision, and colleagues not following the internal routines.

Two years later, the employee applied for an educational supervisor position for the kindergarten’s youngest children. She did not get the position. This was partly because of her high amount of leave and because she had previously asked not to work with the youngest children, as lifting and carrying them would cause her pain.

One year later, she applied for another position as educational supervisor. Again, she did not get the position. At the same time, the employee was removed from her work tasks in connection with a child with special needs. Based on this, she felt retaliated against due to her whistleblowing. She also felt discriminated against based on her disability and her care responsibilities towards her son.

Company had played nice

The Equality and Anti-discrimination Tribunal concluded that the employee had not been discriminated against or suffered retaliation due to whistleblowing. It found that the positions were filled based on experience and there was a legitimate reason for removing the employee from her work tasks.

In terms of discrimination, the company could document that the applicants chosen for the positions had more experience than the employee. Even though the company had considered the employee’s sick- and care leave for the first position, her lack of experience was the decisive factor. Although the employee had held a similar position for six weeks, the positions had been given to applicants with years of experience in similar positions in both instances.

As for the retaliation question, three years had passed since the employee’s internal whistleblower report and the removal of her work tasks. Her work tasks in terms of the child with special needs were only removed because she had significant sick leave at that time, and the child was dependent on having the same adults around.

IUNO’s opinion

Discrimination is prohibited in every aspect of the employment relationship, including the appointment of employees. Employees cannot directly or indirectly be discriminated against based on their disabilities or care responsibilities. However, the company’s decision will only be discriminatory if the discriminatory basis in question has been decisive.

IUNO recommends that companies appoint the applicant most qualified for the position in question. Although clear and objective job qualifications are recommended, such qualifications risk being indirectly discriminatory. Discrimination in job vacancies and appointments is only legal if the discrimination is proportionate, necessary, and justified.

[The Norwegian Equality and Anti-Discrimination Tribunal’s decision of 16 October 2023 in case 21/667]