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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

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