- Date:
- 15 May 2012
A fixed-term contract was held in the circumstances to be an open-ended contract. The employer's decision not to renew was therefore held to constitute termination of employment which, due to the employee's pregnancy, was in conflict with the Danish Act on Equal Treatment of Men and Women
A fixed-term contract was held in the circumstances to be an open-ended contract. The employer’s decision not to renew was therefore held to constitute termination of employment which, due to the employee’s pregnancy, was in conflict with the Danish Act on Equal Treatment of Men and Women.
In November 2011, the Danish Supreme Court ruled that an employer’s decision not to offer permanent employment when a fixed-term contract expires is generally not the same as termination of employment. In this case, this nevertheless meant in the circumstances that a pregnant employee on a fixed-term contract which was not renewed was held to have been dismissed by her employer.
The case concerned a personal assistant working for the Danish division of a major international company. After 3 years’ employment, she resigned because she found it difficult to cooperate with her manager. The day after her notice period expired, however, she was informed that the manager had been dismissed and released from the duty to work. A few days later, she then signed a 3-month contract of re-employment with a new manager.
But before the 3 months ended, the new manager was replaced by another new manager, and 3 days after the employee had informed the HR department that she was pregnant, she was informed by her newest manager that the contract would not be renewed.
Employment was in effect resumed
The employee turned to the Danish Board of Equal Treatment, claiming compensation for dismissal due to pregnancy. She believed she had been dismissed because her re-employment was in effect a withdrawal of her own resignation. She further believed that, in connection with her re-employment, her then manager had said that the job was not really a fixed-term job.
The company argued that the decision not to renew her fixed-term contract could not be equated with termination of employment and the decision had nothing to do with her pregnancy, as they had only needed the employee for a relatively short period of time.
The Board decided in favour of the employee, holding that her re-employment was in effect a resumption of the fixed-term contract and that her employment had therefore in fact been terminated while she was pregnant. One of the factors which the Board took into account in its decision was that some of the employee’s duties and responsibilities were more long-term in nature than 3 months.
The Board also held that the company had not discharged the burden of proving that the decision not to renew the contract was not entirely or partly due to the employee’s pregnancy, among other things because of the close proximity in time between the date when the employee informed the company of her pregnancy and the date when her contract was terminated, and because the tasks carried out by the employee still needed to be carried out. Accordingly, the employee was awarded 9 months’ pay in compensation.
In November 2011, the Danish Supreme Court ruled that an employer’s decision not to offer permanent employment when a fixed-term contract expires is generally not the same as termination of employment. In this case, this nevertheless meant in the circumstances that a pregnant employee on a fixed-term contract which was not renewed was held to have been dismissed by her employer.
The case concerned a personal assistant working for the Danish division of a major international company. After 3 years’ employment, she resigned because she found it difficult to cooperate with her manager. The day after her notice period expired, however, she was informed that the manager had been dismissed and released from the duty to work. A few days later, she then signed a 3-month contract of re-employment with a new manager.
But before the 3 months ended, the new manager was replaced by another new manager, and 3 days after the employee had informed the HR department that she was pregnant, she was informed by her newest manager that the contract would not be renewed.
Employment was in effect resumed
The employee turned to the Danish Board of Equal Treatment, claiming compensation for dismissal due to pregnancy. She believed she had been dismissed because her re-employment was in effect a withdrawal of her own resignation. She further believed that, in connection with her re-employment, her then manager had said that the job was not really a fixed-term job.
The company argued that the decision not to renew her fixed-term contract could not be equated with termination of employment and the decision had nothing to do with her pregnancy, as they had only needed the employee for a relatively short period of time.
The Board decided in favour of the employee, holding that her re-employment was in effect a resumption of the fixed-term contract and that her employment had therefore in fact been terminated while she was pregnant. One of the factors which the Board took into account in its decision was that some of the employee’s duties and responsibilities were more long-term in nature than 3 months.
The Board also held that the company had not discharged the burden of proving that the decision not to renew the contract was not entirely or partly due to the employee’s pregnancy, among other things because of the close proximity in time between the date when the employee informed the company of her pregnancy and the date when her contract was terminated, and because the tasks carried out by the employee still needed to be carried out. Accordingly, the employee was awarded 9 months’ pay in compensation.
Norrbom Vinding notes
- that the decision illustrates it cannot be ruled out entirely that a decision not to renew a fixed-term contract in special circumstances, including if the fixed term cannot be regarded as being genuine, may be held to constitute termination of employment; and
- that the clear-cut point of departure – as established by the Danish Supreme Court – remains that a decision not to offer an employee an open-ended contract after the expiry of a fixed-term contract cannot be regarded as termination of employment, and that any compensation awarded under the Danish Act on Equal Treatment of Men and Women in such a situation will amount to about EUR 3,400.
