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Eating the cake and having it, too
Case law has established on several occasions that under the Danish Act on Equal Treatment of Men and Women, employees on maternity, paternity and parental leave are also entitled to be invited to the annual interview about salary and employment terms. Additionally, employers are not allowed to discriminate between men and women in terms of pay. If an employee claims this principle has been violated, the Danish Equal Pay Act provides additional protection against dismissal based on the employee's demand for equal pay for a period of up to one year after the demand was made. The application of those provisions is illustrated by this Supreme Court judgment.
The case started when a purchasing assistant on maternity leave was not invited to the annual staff development interview/salary review. Nor had she been given a raise during her absence. The purchasing assistant returned to work, and after a few months it was time for the next year's staff development interview/salary review. The assistant was given a raise, but she did not believe it was big enough. After a short while, her employer dismissed her, citing cooperation issues. The purchasing assistant turned to her trade union, and the matter ultimately ended up before the Danish Supreme Court.
There's a price to be paid
The Supreme Court established first of all that precluding a woman employee from a raise because she has been on maternity or parental leave constitutes discrimination in contravention of the Danish Equal Pay Act. The Court was satisfied that there was reason to believe the purchasing assistant had been precluded from a raise because she was on leave. In its assessment, the Court took into account a number of factors, including that all employees who were not on maternity, paternity or parental leave had been invited to a salary review and that a major part of them had been given a raise. As the employer was unable to prove to the Court's satisfaction that the principle of equal pay had not been breached, the purchasing assistant was entitled to back pay.
In addition, the failure to invite the purchasing assistant to the development interview/salary review was in itself at odds with the provisions of the Danish Act on Equal Treatment of Men and Women, a fact which the employer had acknowledged. Accordingly, the purchasing assistant was awarded about EUR 1,350 in compensation.
Finally, the Court had regard to the fact that the purchasing assistant had demanded equal pay after returning from her leave. As she had been dismissed within one year after demanding equal pay, her employer had to disprove that the decision to dismiss her had anything to do with this demand. On the evidence, however, the Court was not satisfied that the employer had discharged this burden and therefore awarded the purchasing assistant 6 months' pay in compensation, which amount was assessed with due regard to the assistant's seniority in the job and the circumstances of the case.
Norrbom Vinding notes:
- that employers should take care to invite employees on maternity, paternity and parental leave to salary reviews if such reviews are standard practice in the company;
- that it is important for employers to note the special dismissal protection which is granted for a period of one year after a demand for equal pay has been made; and
- that the award of 6 months' pay for dismissal contrary to the Danish Equal Pay Act and the award of about EUR 1,350 under the Danish Act on Equal Treatment of Men and Women for not inviting the purchasing assistant to a salary review are consistent with previous case law.
The above does not constitute legal advice and should not be relied upon as such
For more information please visit www.norrbomvinding.com