- 20 Aug 2009
An employee planning to adopt her civil partner's child was protected by the Danish Act on Equal Treatment of Men and Women.
An employee planning to adopt her civil partner’s child was protected by the Danish Act on Equal Treatment of Men and Women.
The Danish Act on Equal Treatment of Men and Women protects employees from dismissal due to pregnancy, childbirth or adoption. And, in some cases, the protection will extend to employees planning to adopt a civil partner’s child. This was established by the Danish Eastern High Court on a purposive construction of the Act.
The case was brought by a laboratory technician who, after around 10 years’ employment, was dismissed in connection with a reorganisation. As she saw it, she had been dismissed because of her plans to adopt her civil partner’s child and take leave in that connection. She had done the same when her partner had her first child.
Protected by the Act on Equal Treatment of Men and Women
The employer argued that the concept of adoption in s 9 of the Act does not include a situation where the woman is only a potential stepchild adopter at the time of dismissal. She will be a potential stepchild adopter so long as her civil partner has not consented to adoption, a consent that cannot be given until 3 months after the birth.
But the Court did not agree, holding that, depending on the circumstances, the protection also extends to women planning to adopt a civil partner’s child. Taking into account that the laboratory technician had already adopted her partner’s first child and taken leave on that occasion and that the decision about the second pregnancy had been made by the couple together, the Court held that the protection against dismissal due to pregnancy, childbirth and adoption applied, at least in these circumstances.
Dismissal was objectively justified
Even so, the Court ruled in favour of the employer in this case.
The reason was that, in the Court’s view, the laboratory technician had failed to show any facts that could give rise to a presumption that the dismissal was related to the planned adoption and leave. For one thing, the Court noted, the employer had suffered from financial difficulties at the time of her dismissal, which was based on a number of criteria that had been set by the employer and approved by the works council. For another thing, the timing of the laboratory technician’s notification of her partner’s pregnancy and the timing of her dismissal did not indicate any connection between the dismissal and the upcoming adoption and leave.
Norrbom Vinding notes
that the case shows that a purposive construction will be applied in determining the scope of the Danish Act on Equal Treatment of Men and Women; and
that the case was nevertheless decided on its merits, which means that upcoming stepchild adopters may not be protected under the Act in certain situations, eg where the adoption is not near, depends on a consent from someone other than the adopter and/or is not based on a specific statutory right.