Deputy-Ombudsman Maija Sakslin has issued a reprimand to the Tampere City Board for an unlawful action on the part of the City. A ban on recruitment had been imposed on employees of an information technology public utility company that had been externalised by the City.
The City of Tampere had decided in September 2009 to put the services produced by the public utility company up for tender; this was done in the form of an alienation of the company and sale of the business operations. The period for submission of tenders was until spring 2010 and alienation of the company was supposed to take place in autumn 2010.
The City had informed the personnel of the information technology public utility company that was planned for externalisation that its officeholders and employees could not be appointed to City posts while the process of alienating the company was still ongoing. The ban on recruitment applied to the period from September 2009 to October 2010. The explanation advanced by the City for its restriction of recruitment was that it stemmed from a reason that was commercially warranted and founded in an Act.
A complaint about the matter was made by a person who had applied during the externalisation project for work in the library sector. The ban meant that he was excluded from a public post for a period of several months.
The Deputy-Ombudsman pointed out that appointment to an official post is based on overall consideration, in which the general constitutional principles with respect to appointments must be interpreted together with the general and specific eligibility criteria for the post in question. In addition, the requirement of equal treatment must be observed in recruitment. The provisions of the Constitution are complemented by those of the Public Servants Act and the Employment Contracts Act that require employers to observe equal treatment and non-discrimination in both recruitment practices and employment relationships.
The regulations of the Employment Contracts Act and of the Public Servants Act with respect to externalisation are likewise binding and their purpose is to protect a worker’s employment contract and an office-holder's service relationship. Transfers of employment and service contracts are made without the consent of the parties involved and can not deviate in a direction that is unfavourable for employees and office-holders.
In the view of the Deputy-Ombudsman, the employer's unilateral ban on recruitment was factually equatable with ordering a transfer of employment and service relationships. On the basis of case law, however, an employer can not, contrary to an employee's wishes, agree that an employment relationship will or will not be transferred. Thus, in the Deputy-Ombudsman's opinion, it is not possible to infer from these provisions that an employer has a right to impose a unilateral recruitment ban of this kind, either.
When it determined that employees of the public utility company could not be appointed to other City offices or tasks while the sale of the business was being negotiated, the City had placed these persons in a disadvantaged position relative to other employees or office-holders. Without an acceptable reason, an action of this kind is discrimination contrary to Section 6.2 of the Constitution.
The fact that a person was in an employment or service relationship with an operational part of a municipality that may have been the object of externalisation was not an acceptable ground in the meaning of the Constitution that would have warranted a ban on recruitment. Nor, from the perspective of the fundamental rights system, are the commercial reasons presented by the City an acceptable ground for restricting the fundamental rights of city office-holders and employees and treating them differently in recruitment.
Thus the City of Tampere's action was contrary to both the Constitution and to the demand for equal treatment and non-discrimination that is enshrined in the Public Servants Act and the Employment Contracts Act.
Additional info will be provided by Senior Legal Adviser Ulla-Maija Lindström, tel. + 358(0)9 432 3355.