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When does fertility treatment start?

May 2011 - Employment. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

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Discrimination
Employees are not protected from dismissal in the period preceding fertility treatment.
For an employer to dismiss an employee because she is undergoing fertility treatment would be a breach of the Danish Act on Equal Treatment of Men and Women. But when can fertility treatment be said to have actually started? This was the question before the Danish Western High Court.
A company had to cut production staff. Six employees were selected, either for their sickness absence or seniority. Among those selected was a female employee with a high sickness absence rate. There was just one problem: She was undergoing a number of tests in preparation for fertility treatment.
The employee believed she had been given notice because she had begun fertility treatment, and sued her employer. The employer, on the other hand, argued that the employee did not enjoy special protection against dismissal under the Danish Act on Equal Treatment of Men and Women since she was only undergoing preliminary testing at her general practitioner’s. The sole reason for terminating her employment was her sickness absence.
No protection
The Court ruled in favour of the employer, noting that when she was given notice, she was not being treated for infertility. Thus, the Court has established that the Danish Act on Equal Treatment of Men and Women offers no special protection against dismissal in the early stages of preliminary testing to determine which type of fertility treatment to offer the employee.
The case has been appealed to the Danish Supreme Court.
Norrbom Vinding notes:
  • that the case establishes that the statutory protection against dismissal does not cover the preliminary phase of testing to determine which type of fertility treatment to offer. The special protection under the Danish Act on Equal Treatment of Men and Women will not be available until the employee actually begins the treatment that may lead to pregnancy; and

  • that the judgment seems to be in line with the Supreme Court judgment reported in UfR 2003.603H.
The above does not constitute legal advice and should not be relied upon as such

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