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The evidence spoke for itself

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

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Discrimination - Equal Treatment Act
The document with the written notice of termination had been created before the employee informed her ‎employer that she was pregnant. The reason for the dismissal was therefore not her pregnancy.‎
The Danish Act on Equal Treatment of Men and Women protects employees against dismissal by reason ‎of pregnancy. The burden of proof under the Act may be difficult to discharge unless the employer is ‎able to show that the decision to dismiss the employee was made before the employer had become ‎aware of her pregnancy. This can be seen from this High Court judgment.‎
A dentist’s assistant discovered in early April 2008 that she was pregnant. She went on sick leave on 16 ‎April, and on 18 April she underwent surgery for ectopic pregnancy. On 20 April she called her employer ‎to tell them about the pregnancy. She returned to work on 29 April and was dismissed the same day.‎
The assistant believed that her dismissal was contrary to the Danish Act on Equal Treatment of Men and ‎Women and that she was therefore entitled to compensation under the Act.‎
Her employer argued that the decision to dismiss had been made already on 15 April 2008 and that they ‎had not been aware of the pregnancy at that point. On the contrary, she was dismissed for her lack of ‎commitment and poor performance.‎
Lack of knowledge proved
The employer succeeded in proving to the Court’s satisfaction that the document had been created ‎before the assistant was given notice. This was one of the reasons why the Court was satisfied that the ‎employer had not been aware of the pregnancy when dismissing the assistant and, accordingly, the ‎pregnancy could not have been a factor in the decision to dismiss.‎
Norrbom Vinding notes:
  • that the judgment shows that, in cases concerning alleged dismissal due to pregnancy, whether ‎or not the employer is able to prove to the court’s satisfaction that the decision to dismiss was ‎made before the employer became aware of the pregnancy may be crucial to the outcome.‎
The above does not constitute legal advice and should not be relied upon as such
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