Article 65, paragraph 3 of the Labor Standards Act of Japan
allows pregnant employees to request a transfer to lighter
activities. In addition, Article 9, paragraph 3 of the Act on
Securing, Etc. of Equal Opportunity and Treatment between Men and
Women in Employment ("Equal Opportunity Act") forbids
employers from treating female employees disadvantageously as a
result of them making a request to transfer to other light
activities.
In the Hiroshima Chuo Hoken Coop - C Coop Hospital case,
the appellant asserted that she was unlawfully demoted as a
consequence of her request to transfer to other light activities
when she was pregnant, in violation of Article 9, paragraph 3 of
the Equal Opportunity Act. The appellant also asserted that it was
unlawful for her employer to prevent her from returning to her
former position once she returned from child care
leave.
The Supreme Court found that Article 9, paragraph 3 of the Equal
Opportunity Act is a mandatory statute and that a demotion arising
out of a pregnant employee's request to transfer to light
activities is in violation of the Act, unless either:
- there are objectively rational reasons that make it possible to recognize that the pregnant employee voluntarily agreed to the demotion, or
- it is difficult for the employer to transfer the employee to light activities without demotion because of the necessity of a smoothly functioning business or an appropriate allocation of human resources,
in which case the Court may find in favor of the employer where
the demotion does not substantially violate Article 9, paragraph 3
of the Equal Opportunity Act.
In this case, the Supreme Court found that there were no
objectively rational reasons that would explain why the appellant
would voluntarily agree to the demotion, and thus the first
criterion was not satisfied, but it was not clear from the record
whether there are any facts that would satisfy the second
criterion. Accordingly, the Court remanded the case to the original
court for adjudication
The Supreme Court's decision in Hiroshima is
noteworthy because this is the first case in which the Supreme
Court sets out the criteria used to determine whether a demotion in
connection with a pregnant employee's transfer request may
violate Article 9, paragraph 3 of the Equal Opportunity Act.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
