- Date:
- 01 Feb 2011
- By:
- Sabine Buhl Valentiner
The city court said it was okay to dismiss an employee on maternity leave. But it was not okay that her promised pay rise did not take effect until after her leave.
The prohibition of non-discrimination on grounds of gender not only applies in a dismissal situation. Employers are also prohibited from discriminating between men and woman in terms of pay. That was the lesson learnt by the employer in this case.
In the spring of 2008, a bookkeeping assistant, who was about to go on maternity leave, was told that she could expect a pay rise after her leave. However, she never got the chance to enjoy her pay rise because she was given notice in the autumn of 2008 while still on leave.
The employer explained that business was slow because customers had been hit hard by the economic crisis. Only a few employees had been given a pay rise in 2008 and, due to the crisis, the employer could only afford to retain the best performing employees. The bookkeeping assistant’s union took the view that the real reason for the dismissal was her maternity leave, which meant that the employer had contravened the Danish Act on Equal Treatment of Men and Women as well as the Danish Equal Pay Act.
Dismissal was okay
Based on the evidence, the Court found no reason to believe that the dismissal was based on the bookkeeping assistant's pregnancy or maternity leave, and dismissed her claim.
Based on the evidence, the Court found no reason to believe that the dismissal was based on the bookkeeping assistant's pregnancy or maternity leave, and dismissed her claim.
But the Court found it hard to understand why the pay rise she had been promised did not take effect until after her leave. Because her employer had failed to prove that the deferral of the pay rise had nothing to do with the maternity leave, she was entitled to the pay rise plus 12 weeks’ pay in compensation.
Norrbom Vinding notes
- that the case shows it is possible for employers to satisfy the reversed burden of proof applicable in a situation where an employee on childbirth-related leave is dismissed if the employer is able to prove – based on objective criteria – that the employee on leave is the most dispensable; and
- that the case illustrates that employers should keep in mind that failure to comply with the Danish Equal Pay Act can be sanctioned by the payment of back pay as well as compensation.
