Supreme Court judgment - no duty to reassign during the notice period

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Date:
01 Nov 2016

this week, the danish supreme court ruled in the precedent-setting case about a pregnant employee under notice who claimed discrimination because she had not been reassigned to a vacant position that arose during the notice period.

By:
Yvonne Frederiksen

This week, the Danish Supreme Court ruled in the precedent-setting case about a pregnant employee under notice who claimed discrimination because she had not been reassigned to a vacant position that arose during the notice period.

The case concerned a vocational college which dismissed a number of its employees to ‎cut costs. When deciding which employees to select, the employer was not aware that ‎one of them was pregnant.‎

The selection decision was made on 22 September 2011, and on 6 October 2011 the ‎employee, a marketing coordinator, informed the employer that she was pregnant.‎

On 26 October 2011, a consultation process was initiated and a letter was forwarded to ‎the affected employees to inform them that they had been selected, and ask for any ‎comments from them before the final decision was made. The marketing coordinator's ‎trade union responded to the letter, arguing that it would be contrary to the Danish Act ‎on Equal Treatment of Men and Women to dismiss her.‎

Nevertheless, the employer maintained its decision, and on 28 November 2011 the ‎marketing coordinator was given three months' notice of termination to expire on the ‎last day of February 2012.‎

The marketing coordinator argued that the employer had not made a bona fide effort to ‎reassign her since the possibilities of reassignment had been explored at the time when ‎the selection decision was made – and thus before she informed the employer of her ‎pregnancy.‎

The marketing coordinator and her trade union further argued that the employer's duty to ‎reassign must be more comprehensive if the employee in question is pregnant, and that ‎the duty must be extended to cover the entire notice period.‎

Surprisingly, the Danish Western High Court ruled in favour of the marketing coordinator ‎in its judgment of 3 June 2014.‎

Now, the Supreme Court has ruled in the appeal, finding in favour of the employer.‎

In its reasons, the Supreme Court notes that as a general principle of employment law ‎according to Supreme Court case law, the fairness of a dismissal is to be assessed on ‎the basis of the conditions prevailing at the time of notice, and there is no reason to ‎depart from this principle in connection with the dismissal of a pregnant employee.‎

The Supreme Court further notes that in the assessment of whether the employer has ‎discharged the burden of proving that the pregnancy was not a factor in the decision to ‎dismiss a pregnant employee, it may be taken into account – depending on the ‎circumstances – if the employer has failed to reassign the employee to another position ‎which was vacant in the period leading up to the date of notice or which was expected ‎at the date of notice to fall vacant before the end of the notice period.‎

Having considered the facts of the case, however, the Supreme Court concludes that ‎the employer has discharged the burden of proving that reassignment was not possible ‎at the date of notice, and thus also that the employee's pregnancy was not a factor in ‎the decision to dismiss her.‎

The only question which then remained was if facts had been demonstrated to exist ‎which may create a presumption that the employer had acted contrary to section 2 of ‎the Danish Act on Equal Treatment of Men and Women by not offering one of the ‎vacancies arising during the notice period to the pregnant employee under notice. ‎According to Supreme Court case law, such breach of section 2 of the Act may trigger ‎an award of DKK 25,000 (approx. EUR 3,350). However, the Supreme Court held that ‎there was no basis for reaching such a conclusion, having regard among other things to ‎the fact that the employee had not applied for or otherwise expressed an interest in any ‎of the positions that had fallen vacant during the notice period.‎

Accordingly, the Supreme Court ruled in favour of the employer on all counts.‎

 

Norrbom Vinding notes

  • that we are very pleased to see this clarification of the law by the Supreme Court with ‎regard to dismissal of employees who are pregnant or on maternity leave,‎
  • that the Supreme Court has thus established once again that the conditions prevailing ‎at the date of notice are the deciding factor as to whether a dismissal is fair – also if the ‎affected employee is pregnant or on maternity leave; and
  • that the Supreme Court has further established that there is no duty to offer to ‎employees who are pregnant or on maternity leave and under notice any positions ‎falling vacant after the date of notice which the employer did not know at the date of ‎notice would fall vacant before the end of the notice period.‎