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Employee's fixed-term contract was not terminated during maternity leave 05-10-2009

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

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Email correspondence about leave extension was not a promise to extend the contract

Yvonne Frederiksen
yf@norrbomvinding.com

Email correspondence about leave extension was not a promise to extend the contract

 

An employee took emails to mean that her contract had been extended.

The case concerned a project coordinator who was employed on a two-year contract. After about one year, she took maternity leave and was scheduled to return to work the last couple of months before her contract ended.

She emailed with her employer about extending her leave for the remainder of the two-year term, and there was also an appraisal interview. This was taken by the employee as a promise to extend her contract when she returned from her leave. When the employer told her that she would not be returning, she believed she was entitled to consider her contract terminated.

Her primary claim was that her contract had been terminated in breach of the Danish Act on Equal Treatment of Men and Women and its provisions about termination of employment while on maternity leave. Alternatively, she claimed, her contract had not been extended because of her maternity leave, which was also at odds with the Danish Act on Equal Treatment of Men and Women.

Like the lower court, the High Court found that neither the interview nor the emails had given the employee reason to believe that her contract had been extended. The Court said in this regard that "extending the contract requires a firmer foundation". Accordingly, the contract had not been terminated. Both courts also agreed that the fact that the contract had not been extended was not contrary to the Danish Act on Equal Treatment of Men and Women. There were valid reasons for not extending the contract, and the Court found in favour of the employer.

 

Norrbom Vinding notes:•

  • •that the case illustrates that relatively hard proof is required to show that employer and employee have agreed to extend a fixed-term contract; and
  • that an employer is not required to offer a pregnant woman or a woman on maternity leave on a fixed-term contract a permanent contract or an extension of the fixed-term contract even if there is a vacancy so long as there are valid reasons for not offering her the vacant position.

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