- 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.
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.