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Eating the cake and having it, too‎

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

More articles by this firm.

Discrimination - Equal Treatment Act
A purchasing assistant on maternity leave was not invited to the annual salary review and was later given ‎notice. That ended up costing the employer a sizeable amount. ‎

Case law has established on several occasions that under the Danish Act on Equal Treatment of Men and ‎Women, employees on maternity, paternity and parental leave are also entitled to be invited to the ‎annual interview about salary and employment terms. Additionally, employers are not allowed to ‎discriminate between men and women in terms of pay. If an employee claims this principle has been ‎violated, the Danish Equal Pay Act provides additional protection against dismissal based on the ‎employee's demand for equal pay for a period of up to one year after the demand was made. The ‎application of those provisions is illustrated by this Supreme Court judgment.‎

The case started when a purchasing assistant on maternity leave was not invited to the annual staff ‎development interview/salary review.  Nor had she been given a raise during her absence. The ‎purchasing assistant returned to work, and after a few months it was time for the next year's staff ‎development interview/salary review. The assistant was given a raise, but she did not believe it was big ‎enough. After a short while, her employer dismissed her, citing cooperation issues. ‎ The purchasing assistant turned to her trade union, and the matter ultimately ended up before the ‎Danish Supreme Court.‎

There's a price to be paid
The Supreme Court established first of all that precluding a woman employee from a raise because she ‎has been on maternity or parental leave constitutes discrimination in contravention of the Danish Equal ‎Pay Act. The Court was satisfied that there was reason to believe the purchasing assistant had been ‎precluded from a raise because she was on leave. In its assessment, the Court took into account a ‎number of factors, including that all employees who were not on maternity, paternity or parental leave ‎had been invited to a salary review and that a major part of them had been given a raise. As the ‎employer was unable to prove to the Court's satisfaction that the principle of equal pay had not been ‎breached, the purchasing assistant was entitled to back pay.‎

In addition, the failure to invite the purchasing assistant to the development interview/salary review ‎was in itself at odds with the provisions of the Danish Act on Equal Treatment of Men and Women, a fact ‎which the employer had acknowledged. Accordingly, the purchasing assistant was awarded about EUR ‎‎1,350 in compensation.‎

Finally, the Court had regard to the fact that the purchasing assistant had demanded equal pay after ‎returning from her leave. As she had been dismissed within one year after demanding equal pay, her ‎employer had to disprove that the decision to dismiss her had anything to do with this demand. On the ‎evidence, however, the Court was not satisfied that the employer had discharged this burden and ‎therefore awarded the purchasing assistant 6 months' pay in compensation, which amount was assessed ‎with due regard to the assistant's seniority in the job and the circumstances of the case. ‎

Norrbom Vinding notes:

  • that employers should take care to invite employees on maternity, paternity and parental leave ‎to salary reviews if such reviews are standard practice in the company;‎

  • that it is important for employers to note the special dismissal protection which is granted for a ‎period of one year after a demand for equal pay has been made; and‎

  • that the award of 6 months' pay for dismissal contrary to the Danish Equal Pay Act and the award ‎of about EUR 1,350 under the Danish Act on Equal Treatment of Men and Women for not inviting ‎the purchasing assistant to a salary review are consistent with previous case law.‎

The above does not constitute legal advice and should not be relied upon as such

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