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Paternity leave and pregnancy

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

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Two complaints, two decisions: the Danish Gender Equality Board has made two decisions on dismissal on grounds of pregnancy and childbirth-related leave

The Danish Gender Equality Board (replaced by the Danish Board of Equal Treatment with effect from 1 January 2009) considered a complaint where a private hospital was not able to satisfy the burden of proving that the dismissal of a pregnant employee was based on redundancy as a result of restructuring, not pregnancy. In another complaint, however, the Board found that even though a male employee was dismissed after he returned from paternity leave, the reason for dismissal was not leave-related.

In the first complaint, a kitchen assistant working at a private hospital was dismissed shortly after she had told the employer that she was pregnant. The employer said the reason for the dismissal was a restructuring exercise and lack of qualifications: the employee was unable to perform the therapeutic functions that she would be required to fulfil after the restructuring. On the other hand, the employee believed that the dismissal was based on her pregnancy.

The Board noted that because the employer had dismissed the employee while she was pregnant, it was for the employer to disprove that the reason for dismissal was pregnancy-related. The employer was not able to do so. Accordingly, the employee was awarded 6 months' pay under the Danish Act on Equal Treatment of Men and Women.

In the second complaint, a male business control manager had been continuously employed for ten years. During a performance appraisal review, the employee was presented with a number of requirements in relation to his management skills. A year later he became a father and therefore took paternity leave and one week's holiday. When the employee returned to work, he was told that he was unfit to be a manager. In his opinion, however, the paternity leave was a factor in the dismissal.

The Board noted that the employer had decided to dismiss the employee before he went on paternity leave. Thus, it was for the employee to prove the existence of a presumption that the reason for dismissal was paternity leave. The Board said that it is only of minor inconvenience for an employer when an employee takes paternity leave. It was therefore unlikely that the reason for dismissal was leave-related.

Norrbom Vinding notes:  

  • that in complaints under the Danish Act on Equal Treatment of Men and Women, it is a crucial factor which party has to discharge the burden of proving discrimination

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