- 18 Sep 2009
It constituted a breach of the Danish Act on Equal Treatment of Men and Women when a care worker was dismissed while on maternity leave. The employer failed to discharge the burden of proving that she was dismissed for showing up late for work.
Again an employer has had to accept the fact that it requires concrete evidence to discharge the reversed burden of proof in cases where a pregnant employee is dismissed. In this case, the employer failed to prove that a pregnant employee had already been given warnings about her late arrival at work, resulting in her dismissal.
A care worker was dismissed after 10 years of employment. The dismissal was effected during her maternity leave when she informed her employer that she was pregnant again. However, the employer claimed that she had been given verbal notice of termination a long time ago – before she went on maternity leave and before she reported sick due to pregnancy-related illness.
The employer then gave written notice of termination to the employee, citing late arrival at work as the reason for the dismissal.
The employee sued her employer, claiming that her dismissal was contrary to the Danish Act on Equal Treatment of Men and Women. The Court found that the dismissal had not been effected until the employee was given written notice of termination, ie while the employee was pregnant and on maternity leave. Consequently, it was for the employer to prove that the dismissal was not associated with the employee's pregnancy.
The employer failed to discharge the burden of proof. The employee was therefore awarded DKK 240 000 in compensation, equivalent to one year’s pay.
Norrbom Vinding notes
- that an employer should always get written evidence that notice has been given; and
- that this judgment once again establishes that it is extraordinarily difficult to discharge the reversed burden of proof, particularly if the dismissal is based on an employee's circumstances.