- Date:
- 15 Nov 2012
A dismissed employee failed to discharge her share of the burden of proof under the Danish Act on Equal Treatment of Men and Women. Accordingly, the dismissal was not contrary to the Act
A dismissed employee failed to discharge her share of the burden of proof under the Danish Act on Equal Treatment of Men and Women. Accordingly, the dismissal was not contrary to the Act.
If an employee is dismissed after returning from maternity leave and is able to raise a presumption of discrimination, the burden of proof will shift to the employer. And then the employer must disprove discrimination. This complaint before the Danish Board of Equal Treatment illustrates how the shared burden of proof works in practice.
A pharmacy employee was dismissed shortly after returning from maternity leave and holiday. The reason for dismissing her was the pharmacy's financial situation as a result of a reduction in medicine profits.
The employee believed that her employer must have known about the reduction in medicine profits during her maternity leave. It was therefore highly probable that the decision to dismiss her was made while she was absent on leave. As a result, the employee believed that the employer was required to prove why she was the most expandable employee in the circumstances.
The employer explained that the pharmacy had been notified of the coming reduction in medicine profits while she was on maternity leave, but that they did not know the extent of the reduction at that point or when it would be implemented. The decision to dismiss her was therefore not made until after she had returned to work. As a result, the employer did not believe that the employee had discharged her share of the burden of proof.
Employee's share of the burden of proof not discharged
The Board of Equal Treatment did not believe that the decision to dismiss the employee had been made while she was on maternity leave. Nor did the Board believe that she had shown a presumption of discrimination. In this connection, the Board took into account that the changes in the pharmacy took place while the employee was on holiday immediately after her maternity leave. Accordingly, the Board decided in favour of the employer.
The Board of Equal Treatment did not believe that the decision to dismiss the employee had been made while she was on maternity leave. Nor did the Board believe that she had shown a presumption of discrimination. In this connection, the Board took into account that the changes in the pharmacy took place while the employee was on holiday immediately after her maternity leave. Accordingly, the Board decided in favour of the employer.
Norrbom Vinding notes
- that the decision illustrates that dismissed employees must show facts which give rise to a presumption of discrimination before they will be deemed to have discharged their share of the burden of proof.
