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Taxi driver dismissed for pregnancy

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

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A pregnant taxi driver was awarded 9 months’ pay after being dismissed for pregnancy

A pregnant taxi driver was awarded 9 months' pay in compensation for a pregnancy related dismissal. Her employer failed to prove that the reason for dismissing her was customer complaints and the fact that she had not reported an incident of property damage caused by her driving.

The crux of the case was whether the taxi driver had been dismissed because of her pregnancy.

The Danish Act on Employees' Rights on Transfer of Undertakings had to be taken into account for the purpose of calculating the taxi driver's length of service. She was employed in the autumn of 2005 by a taxicab owner, who had taken over the business from another taxicab owner where the taxi driver had also worked. Before that, the business had been run by yet another taxicab owner where she had also worked - which meant that she had been continuously employed for around 2 years in total.

Her most recent employer knew when he employed her that she was pregnant, but dismissed her shortly after that, citing numerous customer complaints about her.

Burden of proof not discharged

The taxi driver, however, believed that her pregnancy was the reason for dismissal and brought a claim against her employer. She argued that her length of service should be counted from the date when she was first employed as a taxi driver because her employment with the other taxicab owners had been the result of a business transfer.

In addition, she claimed compensation under the Danish Statement of Employment Particulars Act because the statement of particulars she had been provided with did not specify the commencement date.

Her employer disagreed. He claimed that the reason for dismissal was customer complaints and the fact that she had not reported an incident of property damage she had caused while driving. He had reprimanded her about it and he actually knew she was pregnant when he employed her.

But, like the lower court, the High Court was not persuaded by the employer's arguments that the dismissal was not pregnancy-related. Weight was given to the fact that the reprimands given to the taxi driver could not be considered warnings and that it was only after her dismissal she had been reprimanded for failing to report the damage she had caused while driving.

On the question of business transfer, the Court found that the various businesses were sufficiently identical for the transfers to fall within the scope of s 2 of the Danish Act on Employees' Rights on Transfer of Undertakings. Accordingly, the taxi driver's length of service was to be counted from her first employment.

The taxi driver was awarded 9 months' pay for unfair dismissal under the Danish Act on Equal Treatment of Men and Women. She was awarded no compensation under the Danish Statement of Employment Particulars Act as the High Court felt, unlike the lower court, that the particulars missing from the statement of particulars were of no importance in the case.

Norrbom Vinding notes:  

  • that this is yet another case that illustrates how difficult it is for employers to discharge the reversed burden of proof under s 16(4) of the Danish Act on Equal Treatment of Men and Women when the reason for the dismissal relates to the employee's conduct; 
  • that the fact that a warning has been issued may be a (crucial) factor, but that a distinction is made between a reprimand and a warning;
  • and that the courts have the discretion not to award compensation under the Danish Statement of Employment Particulars Act if the deficiency in the statement of particulars is excusable and has had no tangible effect on the employment relationship.

For more information please visit www.norrbomvinding.com