Is it discriminating if an employee who does not have a duty of care is preferred upon promotion if the other applicant has a spouse who needs a lot of attention and care due to illness at home?

Yes. It is discriminatory not to promote an employee because of their duty of care at home.

In employment relationships, it is prohibited to treat an employee less favourably due to the performance of family obligations (clause 3 (1) 3) and subsection 5 (1) of the Gender Equality Act and subsection 2 (3) of the Equal Treatment Act). In addition to bringing up children, family obligations include caring for other close people.

Promotion must be based solely on the qualifications and suitability of the employee for the job. The obligation to care for a family member, however, is not linked to the person’s suitability for the job, but concerns their private life. It’s unacceptable to proceed from the negative assumption that an employee with a duty of care cannot commit to work or contribute as much as another employee without duty of care.

An employer is obliged to create working conditions that enhance the reconciliation of work and family life, taking into account the needs of employees (clause 11 (1) 3) of the Gender Equality Act). This also means the obligation to organise work in such a way that an employee can fulfil the duty of care outside working life. The aim of the provision is to ensure that all employees can actually exercise the right to reconcile work and private life.
Clause 3 (1) 3); subsection 5 (1); clause 11 (1) 3) of the Gender Equality Act
Subsection 2 (3) of the Equal Treatment Act

This explanation does not constitute legal aid in a specific case. Therefore, if you feel that you have been treated unequally, but you did not find a solution to your problem in this article, or if you have a question, please contact the Equality Commissioner by e-mail at avaldus@volinik.ee or telephone +372 626 9059. The anonymity of the person is guaranteed when contacting the Commissioner.