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Dismissal of pregnant woman was not unfair

February 2009 - Employment. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

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06-02-2009 - Although found to have breached the Danish Act on Equal Treatment of Men and Women twice, an employer successfully proved that a pregnant employee had not been dismissed on grounds of pregnancy or childbirth.

Decision by the Danish Gender Equality Board

Yvonne Frederiksen
yf@norrbomvinding.com

Although found to have breached the Danish Act on Equal Treatment of Men and Women twice, an employer successfully proved that a pregnant employee had not been dismissed on grounds of pregnancy or childbirth.

It is not very often that an employer is found to have breached the Danish Act on Equal Treatment of Men and Women on 2 counts and is discharged all the same. This was nevertheless what happened at the Danish Gender Equality Board where a female sales consultant had lodged a complaint against her employer.

She had 3 points of complaint: First of all, the employer had allegedly asked her at the interview if she was planning on having any more children and the fact that she was not had allegedly influenced the employment decision. Normally, it would be quite difficult to prove what goes on at a job interview, but the employer helped her by saying in an email that 'I'm sorry that you are having a difficult pregnancy (you said that you weren't going to have any more children) and that was also the reason why you were offered the job!'.

Secondly, the employer had stopped paying her mobile phone expenses and, thirdly, she believed that she had been dismissed because of her pregnancy. As she was pregnant when dismissed, it was for the employer to prove that the dismissal was not pregnancy-related.

The employer argued that at the job interview the complainant had volunteered the information about not wanting any more children. And as far as the mobile phone expenses were concerned, those expenses had been refunded after her union was involved. Finally, the employer argued that she had not been dismissed on grounds of pregnancy, but because of the company's financial difficulties as all employees had been dismissed.

The Board agreed with the complainant that the Danish Act on Equal Treatment of Men and Women had been breached on her employment and when the employer stopped paying her mobile phone expenses. The Board referred to the email from which it was clear that the fact that she would not be having any more children had been an important element in the employment decision. However, the Board also found that the employer had discharged the reverse burden of proof and shown that the complainant had not been dismissed on grounds of pregnancy since all 22 employees had been dismissed for redundancy the same day. As the employer had refunded the mobile phone expenses, no compensation was awarded.

Norrbom Vinding notes:

  • that the decision shows that the quite heavy burden of proof placed on employers by the Danish Act on Equal Treatment of Men and Women can be discharged if the dismissal is justified by clear operational needs; and
  • that the decision also shows that being influenced in the employment decision by whether or not a candidate wants to have any more children would be contrary to the Danish Act on Equal Treatment of Men and Women.

This information does not constitute legal advice and should not be relied upon as such

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