The claimant, Ms. L., after returning from maternity leave was offered a position that requires less qualification with smaller remuneration than the position she held before the maternity leave. She was later dismissed from her job permanently after requesting parental leave.
Ms. L. complained that the actions of her employer violated the prohibition of discrimination enshrined in the Labour Law.
The Supreme Court started by reminding that in cases where an employee indicates that a discrimination has taken place against him or her, the employer has to bear the burden of proof and has to prove that the employee has not been discriminated. In the case of allegations regarding gender discrimination, the employer has to prove that the employee has not been treated less favorably because of his or her gender, but because of other reasons.
The Court reminded that less favorable treatment in cases of maternity is always considered direct discrimination, therefore offering a lower paid position, as was the case of Ms. T., can be considered gender discrimination. Also the fact that Ms. T. was dismissed after the request for parental leave indicated that she was treated less favorably. Thus the employer of Ms. T. had to prove that she was not discriminated against.
Because the court of appeals had not evaluated the abovementioned findings, the Supreme Court sent the case back to it for reevaluation.