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Difficult to dismiss pregnant employees - regardless of poor finances

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

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An employer who dismisses a pregnant employee will not necessarily fall foul of the Danish Act on Equal Treatment of Men and Women. But the employer will have to prove that the reason for the dismissal was not pregnancy-related.

In three cases the Western High Court has reinforced the difficulty of discharging the reversed burden of proof under the Danish Act on Equal Treatment of Men and Women when a pregnant employee is dismissed

 

An employer who dismisses a pregnant employee will not necessarily fall foul of the Danish Act on Equal Treatment of Men and Women. But the employer will have to prove that the reason for the dismissal was not pregnancy-related.

 

Over the years, the courts have heard a host of pregnancy dismissal cases. And the trend is clear: it is difficult for employers to provide the unambiguous evidence required to satisfy the courts that the dismissal is not pregnancy-related, regardless of whether the reason for the dismissal is a decline in revenue or the employer's general financial situation.

 

Those were the reasons that were cited in three High Court cases, and in all three cases the employer failed to unambiguously prove that pregnancy was not a factor.

 

Strained finances not necessarily enough

In the most recent case, an employee who had been employed for about a year was dismissed on the same day she told the employer she was pregnant. The employer said the dismissal was based on its financial situation.

 

In court, the employer produced extensive accounting records to demonstrate its poor finances. The Court agreed the company's finances were strained and that it was reasonable to effect cost saving measures. However, the situation had been the same when the employer extended the employee's employment a few months earlier - and even without the subsidy it had previously received from the local authority.

 

Consequently, the Court was not convinced that pregnancy was not a factor in the dismissal and therefore awarded the employee 9 months' pay in compensation.

 

Close proximity in time may cause problems

Also in the second case, an employee who had been employed for about a year was dismissed on grounds of poor finances. The dismissal was effected around three weeks after the employee had told her employer she was pregnant.

The Court agreed that it was necessary for the employer to effect a dismissal because of its poor finances. However, the employer's argument that the employee was the most expendable one, among other things because of the "last in, first out" principle, did not hold, the Court found, because her qualifications or performance had not at any time attracted criticism.

On those grounds, the Court was not convinced that the dismissal was based on poor finances only. In that regard, the Court took into account the short time span between the date when the employer had learnt of the pregnancy and the date when she was dismissed. The employee was thus awarded compensation amounting to 6 months' pay.

 

The duty to redeploy must be observed

An employee at a furniture store was dismissed on grounds of declining revenue. She had been employed for around 3 months when notice was given - shortly after she had told the employer she was pregnant.

 

However, only one of the departments was actually seeing a decline in revenue. No other employees were dismissed and the pregnant employee's performance had never attracted criticism. The Court was therefore not convinced that pregnancy was not a factor in the dismissal. Further, the employer should have tried to move the employee to another department. She was awarded 6 months' pay in compensation.

Norrbom Vinding notes: 

  • that these cases yet again show the difficulty of discharging the reversed burden of proof under the Danish Act on Equal Treatment of Men and Women when a pregnant employee is dismissed; 

  • that documentation must be unambiguous in showing that a pregnant employee is the most expendable employee in a dismissal situation based on operational reasons; and

  • that employers should always explore the possibility of redeployment before dismissing a pregnant employee.

Yvonne Frederiksen
yf@norrbomvinding.com

 

www.norrbomvinding.com