Reason for not offering permanent employment was not fertility treatment

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Date:
13 Aug 2010

a temporary supermarket sales assistant undergoing fertility treatment was not offered permanent employment when her contract ended. but the high court found no indication of discrimination.

By:
Yvonne Frederiksen
A temporary supermarket sales assistant undergoing fertility treatment was not offered permanent employment when her contract ended. But the High Court found no indication of discrimination.
 
Employees undergoing fertility treatment are protected against discrimination under the Danish Act on Equal Treatment of Men and Women. In those cases, the Act’s principle of a shared burden of proof applies. This principle means that the employee must show that there is reason to presume direct or indirect discrimination. In this case, a temporary sales assistant was not successful in raising a presumption that her fertility treatment was the reason why she had not been offered a permanent contract when her contract ended.
 
A woman was working as a temporary sales assistant at a large supermarket. Some time into her temporary employment, she told her manager that she would soon begin fertility treatment.
 
While the sales assistant was undergoing fertility treatment, the supermarket expanded and created a number of new jobs. On several occasions, she indicated that she would like to be offered permanent employment in one of the new jobs when her contract ended. She was not offered a permanent contract and therefore left when her contract ended. Believing that she had been passed over because of her fertility treatment, she sued the supermarket.
 
Just not good enough
In court, the sales assistant’s manager stated that her job skills were deficient. Although she got on with her colleagues, she was not good enough and generally found it difficult to learn the daily routines that were central to the job.
 
The Court found that the sales assistant had not shown any reason to presume that she was not offered permanent employment because of her fertility treatment. In reaching this decision, the Court took into account her manager’s statement about her job skills and that the supermarket was used to women employees becoming pregnant. The fact that the supermarket had not formally told her about her deficiencies did not affect this outcome.
 
The sales assistant having failed to discharge her share of the burden of proof, judgment was given in favour of the supermarket.

 

Norrbom Vinding notes

  • that the case shows that not offering a temporary employee permanent employment in a vacant new job is not sufficient in itself to show that there is ‘reason to presume’ discrimination within the meaning of the Danish Act on Equal Treatment of Men and Women in a situation where the employee is undergoing fertility treatment; and

  • that, for employers, cases in which a shared burden of proof applies are obviously preferable to cases involving a reversed burden of proof.