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Ignorance was no excuse

March 2012 - Employment. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

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Discrimination - Equal Treatment Act
The Danish Supreme Court recently ruled that pregnant employees are still protected against dismissal ‎due to sickness absence even if the employer was not aware of the pregnancy when dismissing the ‎employee.‎
Under the Danish Act on Equal Treatment of Men and Women, employers are not allowed to dismiss ‎employees due to pregnancy, childbirth or adoption or absence in that connection. In cases where an ‎employee is nevertheless dismissed for such a reason, the employee is entitled to compensation. In ‎this precedent-setting judgment, the Danish Supreme Court considered whether it is a condition for the ‎entitlement to compensation that the employer was aware of the pregnancy when dismissing the ‎employee, if the reason for the dismissal is sickness absence which turns out to be pregnancy-related.‎
 
Already 1 month after commencing her job, an employee was invited to a meeting to discuss her ‎sickness absence. But she never turned up for the meeting because she was ill. Three days later, she ‎was given notice because of her significant sickness absence. Nearly 2 weeks earlier, she had found out ‎that she was pregnant, but the parties were agreed that she had not yet informed her employer when ‎she was given notice.‎
 
The employee believed she was entitled to compensation because she was suffering from a pregnancy-‎related condition when she was given notice. According to her, whether or not her employer was aware ‎of the pregnancy when dismissing her did not matter. The crucial factor was that she was dismissed ‎because of her sickness absence – and that the reason for the sickness absence was her pregnancy.‎
 
Her employer, on the other hand, argued that since they were not aware of her pregnancy, it could ‎obviously not have been a factor in the decision to dismiss her.‎
 
Knowledge of pregnancy not required
The Supreme Court noted that the prohibition against dismissing employees because of pregnancy-‎related absence in s 9 of the Danish Act on Equal Treatment of Men and Women should be taken as ‎including dismissal due to pregnancy-related absence even where the employer was not and should not ‎have been aware of the pregnancy when dismissing the employee.‎
But the Supreme Court ruled that the entitlement to compensation in such situations will depend on ‎whether the employer withdraws the notice of dismissal on becoming aware that the employee’s ‎sickness absence is pregnancy-related.‎
In the case in question, however, the employer had not withdrawn the notice of dismissal, and the ‎employee was therefore awarded 6 months’ pay in compensation.‎
 
Norrbom Vinding notes:
  • that the judgment tightens current law with regard to protection of pregnant employees in the ‎situation where an employee is given notice due to sickness absence which turns out to be ‎pregnancy-related; but

  • that it must be assumed to still depend on an assessment of the evidence in each individual case ‎whether pregnancy-related absence has been a factor in the decision to dismiss an employee ‎who has pregnancy-related absence as well as sickness absence unrelated to pregnancy.
The above does not constitute legal advice and should not be relied upon as such

For more information please visit www.norrbomvinding.com