- Date:
- 24 Apr 2012
The Danish Supreme Court has affirmed the High Court's decision that employees are not covered by the special dismissal protection under the Danish Act on Equal Treatment of Men and Women until actual fertility treatment begins
The Danish Supreme Court has affirmed the High Court’s decision that employees are not covered by the special dismissal protection under the Danish Act on Equal Treatment of Men and Women until actual fertility treatment begins.
Under s 9 of the Danish Act on Equal Treatment of Men and Women, employers are not allowed to dismiss employees for reasons to do with pregnancy, childbirth or adoption or for exercising their parental rights to leave in that connection.
In 2010, the High Court ruled that employees undergoing initial check-ups before starting actual fertility treatment are not covered by the special dismissal protection of the Danish Act on Equal Treatment of Men and Women. The Danish Supreme Court has now affirmed the High Court’s judgment.
On the same grounds as the High Court, the Supreme Court ruled that – although s 9 of the Danish Act on Equal Treatment of Men and Women protects employees from being dismissed for trying to become pregnant through fertility treatment – the employee in this case was not covered by the dismissal protection under the Act. The reason was that when she was given notice, she was only undergoing initial check-ups and had thus not begun actual fertility treatment.
Like the High Court, the Supreme Court believed that there was no basis for establishing that in deciding to dismiss the employee, the employer had fallen foul of the prohibition on gender discrimination contained in s 4 of the Danish Act on Equal Treatment of Men and Women, the Supreme Court being satisfied that the dismissal was justified by operational needs. The appeal was thus dismissed.
Norrbom Vinding notes
- that the Supreme Court judgment confirms that employees are not entitled to rely on the dismissal protection afforded by s 9 of the Danish Act on Equal Treatment of Men and Women until actual fertility treatment has begun.
