A nurse's third temporary employment contract will not be converted into an open-ended contract. She did not work for about a month and a half during the second contract because she was sick during a pregnancy that ended in a miscarriage. After that, she did return to work. During the third contract, however, she fell ill again during pregnancy. She suspected prohibited discrimination and took the employer to court.
Legal regulation
The law states that an employer may not discriminate between men and women when entering into and terminating an employment contract. This prohibition also applies when not renewing an employment contract. Prohibited discrimination also includes discrimination on grounds of pregnancy. The employer will have to prove that it did not violate the prohibition of discrimination if the employee brings forward facts that may suggest the prohibited distinction.
Suspected prohibited discrimination
The nurse has alleged facts that suggest prohibited discrimination. First, after one or more fixed-term employment contracts, the employer normally proceeds to offer an employment contract for an indefinite period of time if the employee has completed the required training and performs well. It is undisputed that these two conditions had been met and yet the employer did not renew the employment contract.
Counter evidence employer too weak
It is then up to the employer to prove that it did not make any prohibited discrimination and thus to show that the non-renewal of the employment contract was not related to the nurse's pregnancy and/or related complaints. The employer failed to do so. This is because of the following.
According to the employer, he was 'ultimately' not confident of a sustainable fruitful employment relationship and that this was because the nurse was insecure in her work. However, this, according to the employer, real and only reason for non-renewal remained vague and superficial.
The temporary contract did get extended twice. At that time, there was apparently sufficient trust in the nurse. The lack of concrete reasons and the fact that there was only one interview about the job meant that the lack of trust due to the nurse's alleged insecurity came across as a contrived argument, or in any case one that was too strong. This is further confirmed by the fact that the employer wrote nothing about that lack of confidence in the written correspondence about the end of the working relationship.
Consequence
There was therefore prohibited discrimination in not renewing the nurse's employment contract. As a result, the employer acted seriously culpable. The subdistrict court therefore ruled that the employer must pay hefty fair compensation.
The nurse also claimed €5,000.00 in non-material damages because the employer violated her right not to be discriminated against. An injured party whose person has been affected may be entitled to damages to be determined on an equitable basis. Violation of a fundamental right can give rise to damages in circumstances, even without mental injury. Discrimination is a serious breach of standards. The nurse also explained that she felt that the non-renewal of the employment contract due to her pregnancy was very unfair.
The subdistrict court held that the nurse was entitled to damages as a result of that breach of standards and, based on the circumstances of this case, set it at a gross amount of €2,500.00 in fairness.
Note: In principle, an employer is free not to extend a temporary contract. Even if it is customary to extend it under normal working conditions. But add facts that suggest unlawful discrimination, and the situation becomes different.
EN 
NL 
ES 