Doctor suffered because she was a mother: Ombudsman finds that the principle of equal treatment was violated in the case of Dr. Knežević

Gynecology and obstetrics specialist Dr. Jelena Knezevic Her rights were violated and she was placed in a disadvantageous position when her employer - the Capital City Health Center - denied her the opportunity to perform additional work after returning from parental leave, in accordance with the then applicable regulations.

This was determined by the Protector of Human Rights and Freedoms, who recommended to the Ministry of Health that in the future, when regulating regulations in the area of ​​employment rights, it take special care to ensure that the exercise of legally guaranteed rights in the area of ​​maternity and parenthood does not serve as a basis for less favorable treatment of employees, nor for the denial or restriction of other employment rights.

"The Ombudsman notes that in this specific case, the principle of equal treatment was violated, because the use of parental leave was taken as a basis for denying the possibility of performing additional work after returning to work, or for less favorable treatment of the employee for exercising a legally guaranteed right in the area of ​​parenthood," the institution pointed out.

Thousands of patients were left without their chosen gynecologist after Dr. Knežević, after two decades of work in public health, left the Capital City Health Center.

She had not previously received approval for additional work because she had been on parental leave for more than three months during the year before submitting the request, which is why the Medical Doctors' Union (SDMCG) filed a complaint with the Protector of Human Rights and Freedoms alleging discrimination.

Knežević submitted her resignation at the end of June, and her last working day was June 29. A day later, a new regulation came into force, specifying that the use of maternity, paternity or parental leave cannot be an obstacle to performing additional work. After "Vijesti" wrote, the Health Center said that Knežević was still welcome to withdraw her resignation request and continue working at the institution.

Opinion did not prevent the consequences

President of the Medical Doctors' Union, Milena Popović Samardžić Yesterday, she told "Vijesti" that the Ombudsman's opinion comes too late to prevent the harmful consequences that have already occurred.

"Thanks to the actions of the Ministry of Health and the Podgorica Health Center, patients were left without an experienced and quality doctor, and the health system lost an expert whose work was needed exactly where it was most important - with patients," she said.

She said that in healthcare there is no place for improvisation, legal formalism, or decisions whose consequences are subsequently paid for by patients.

"The minimum that citizens can expect from the executive branch is that its actions do not cause obvious harm where it should have prevented it. The Ombudsman's opinion did not arrive in time to prevent the consequences of this decision, but even though it is late, it remains an important warning to the executive branch: this is not how the healthcare system is managed, nor is this how doctors whose work the system is supposed to preserve, not drive out of it, are treated," concluded Popović Samardžić.

Violation of the principle of equal treatment

The Protector points out that the established facts indicate that Dr. Jelena Knežević, after returning from parental leave, submitted a request for consent to perform additional work, but her request was not approved solely because she was absent from work for more than three months in the period of one year prior to submitting the request.

"According to the explicit interpretation of the Ministry of Health at that time, the period of absence also included the time spent on parental leave, regardless of the reason and legal nature of that absence," they explained.

The Protector points out that, in this way, the use of the legally guaranteed right to parental leave produced an unfavorable consequence in the field of work, i.e. it represented a direct obstacle to the realization of the possibility of performing additional work.

They claim that the fact that the criterion from the disputed article of the previous rulebook was formulated seemingly neutrally, that is, that it referred to any absence from work for longer than three months, does not in itself exclude the possibility of discrimination.

"On the contrary, such rules may lead to indirect discrimination if, due to their actual or potential effect, they place a certain group of persons in a particularly disadvantageous position compared to other persons, and there is no objective and reasonable justification for such treatment," the opinion of the Protector states.

The Ombudsman assessed that the application of the previously valid rulebook, in accordance with the interpretation of the Ministry of Health, led to unfavorable treatment of Dr. Knežević, because the use of parental leave was the decisive fact due to which she was not approved to perform additional work.

"At the same time, given the nature of the criterion that applied to all leaves, the Protector also assesses this issue from the aspect of indirect discrimination based on gender. Namely, although the criterion was formally gender-neutral, its effect was such that it could have particularly adversely affected women, taking into account, among other things, the data contained in the complaint according to which women make up the vast majority of users of maternity and parental leave," the institution emphasized.

They claim that there is a basis for concluding that the principle of equal treatment has been violated because a neutral rule is applied in such a way that the use of parental leave produces an adverse consequence in the field of work, and it has not been proven that such a distinction is objectively and reasonably justified by a legitimate aim, with the application of means that are appropriate and necessary to achieve it.

They explained that the violation was remedied during the proceedings before that institution, by adopting a new rulebook that explicitly excluded the use of maternity, paternity and parental leave as a reason for not approving additional work. Such action by the competent authority, they explained, has the consequence that the reason for which the proceedings were initiated, in the part relating to the normative framework that was the subject of the complaint, has ceased.