- 19 Aug 2013
- Sabine Buhl Valentiner
An employer was able to prove that a truck driver was dismissed for his conduct and not for his wife's pregnancy
An employer was able to prove that a truck driver was dismissed for his conduct and not for his wife’s pregnancy.
Fathers enjoy dismissal protection under the Danish Act on Equal Treatment of Men and Women during the mother’s pregnancy, and an employer who dismisses an employee during his wife’s pregnancy faces a reversed burden of proof. In this case, the issue before the Danish Western High Court was whether the employer had discharged this burden of proof.
A truck driver working for a transport business was dismissed and released from the duty to work the notice period. No reason for the dismissal was given in the notice of dismissal. The driver believed he had been dismissed because his wife was pregnant and he was therefore entitled to leave.
His employer was surprised. The driver had not said anything about the pregnancy and, in addition, they had decided to dismiss him because of complaints about his conduct. The case therefore ended up in court.
The High Court sided with the employer, noting initially that the burden of proof may be discharged by the employer showing that the employer had no knowledge of the pregnancy – and if unable to prove this point, then it will depend on an overall assessment of the merits of the case. On the evidence produced, the Court took into account that the business knew about the pregnancy when the driver was given notice. But the driver’s conduct was an important reason for the dismissal. Accordingly, and having regard to the financial consequences of releasing him from the duty to work with the very limited financial consequences it would have for the business to grant him leave due to the Childbirth Fund, the Court did not believe that the business had a motive for dismissing the driver due to pregnancy or the coming leave.
Norrbom Vinding notes
- that the judgment illustrates that when an employee is dismissed during a pregnancy, the decisive factor with regard to the provisions of the Danish Act on Equal Treatment of Men and Women on burden of proof is whether the employer was aware of the pregnancy when the decision to dismiss was made;
- that, generally, it depends on an assessment of the merits of each individual case whether the pregnancy and the coming leave were a factor in the decision to dismiss an employee; and
- that the financial consequences for the business in connection with pregnancy and leave may be taken into account in the assessment of whether the reversed burden of proof has been discharged.