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When does fertility treatment begin?‎

April 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 has affirmed the High Court’s decision that employees are not covered by the ‎special dismissal protection under the Danish Act on Equal Treatment of Men and Women until actual ‎fertility treatment begins.‎ 

Under s 9 of the Danish Act on Equal Treatment of Men and Women, employers are not allowed to ‎dismiss employees for reasons to do with pregnancy, childbirth or adoption or for exercising their ‎parental rights to leave in that connection.‎
 
In 2010, the High Court ruled that employees undergoing initial check-ups before starting actual fertility ‎treatment are not covered by the special dismissal protection of the Danish Act on Equal Treatment of ‎Men and Women. The Danish Supreme Court has now affirmed the High Court’s judgment.
 
On the same grounds as the High Court, the Supreme Court ruled that – although s 9 of the Danish Act on ‎Equal Treatment of Men and Women protects employees from being dismissed for trying to become ‎pregnant through fertility treatment – the employee in this case was not covered by the dismissal ‎protection under the Act. The reason was that when she was given notice, she was only undergoing initial ‎check-ups and had thus not begun actual fertility treatment.‎
 
Like the High Court, the Supreme Court believed that there was no basis for establishing that in deciding ‎to dismiss the employee, the employer had fallen foul of the prohibition on gender discrimination ‎contained in s 4 of the Danish Act on Equal Treatment of Men and Women, the Supreme Court being ‎satisfied that the dismissal was justified by operational needs. The appeal was thus dismissed.‎
 
Norrbom Vinding notes:
  • that the Supreme Court judgment confirms that employees are not entitled to rely on the ‎dismissal protection afforded by s 9 of the Danish Act on Equal Treatment of Men and Women ‎until actual fertility treatment has begun.
The above does not constitute legal advice and should not be relied upon as such

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