Fertility treatment did not shift burden of proof

It was up to a female sign language interpreter undergoing fertility treatment to show facts that raised a presumption of discrimination when she lost her job in a round of redundancies.

 

If an employee is put out of work in a round of redundancies shortly after notifying her employer that she is undergoing fertility treatment, this will not necessarily constitute discrimination.

 

A centre for deaf people experienced a loss in business when a competitor set up close by. When the competitor merged with another business in Copenhagen, the crisis became acute and the centre had to reduce the number of sign language interpreters from 28 to 17. Six of the 28 interpreters were covered by special rules protecting them against dismissal. The other interpreters were assessed on a number of defined criteria.

 

A female interpreter did not score high enough and was dismissed. But, in her opinion, she had been picked out because she had told her employer two months earlier that she was undergoing fertility treatment. She felt discriminated against and therefore brought a claim against her employer.

 

No differential treatment
The parties agreed that job cuts had been necessary. Against this background, the Court held that the fact that the interpreter had told her employer about the fertility treatment did not in itself shift the burden of proof onto the employer so that the employer would have to prove non-discrimination. In addition, the Court held on the evidence of the witnesses and the general information about the selection method that the interpreter had failed to provide the necessary proof of discrimination. Accordingly, the Court ruled in favour of the employer.