- 27 Feb 2009
A pregnant substitute teacher thought she had been promised a permanent job after her temporary contract, but was not invited to interview. This constituted discrimination, according the Danish Gender Equality Board.
Public sector employers must hire those who are best qualified for the job. But they may find it difficult to prove that pregnancy was not a factor in refusing an application from a current temporary employee. This is the result of this complaint where a pregnant temporary employee was passed over for a permanent position although she had been given the impression that she could stay.
‘Prospects are looking bright!’ These words from the principal made a newly hired substitute teacher believe that she would be permanently employed when her 1-year contract ended. In her contract the principal also mentioned that the school had given permanent employment to substitute teachers in the past and that two teachers would soon be retiring. Together with several other indicators, the substitute teacher was therefore left with the impression that her chances of staying were good.
Even so, she was not invited to an interview when she applied for one of two vacancies, both of which required the main subjects she was qualified to teach. The school argued that the teachers they had sourced externally were better qualified. The substitute teacher argued that she had been refused because she had recently told the principal that she was pregnant.
The Board agreed with the pregnant teacher. The complaint was considered under s 2 of the Danish Act on Equal Treatment of Men and Women on equal employment opportunities. The pregnant teacher therefore had to establish the existence of facts indicating that she had been discriminated against. And she succeeded in convincing the Board. It was then for the school to disprove gender-based discrimination. But the school failed to convince the Board that it had appointed the best qualified candidates without the teacher’s pregnancy being a factor. The substitute teacher was therefore awarded 6 months’ pay, which is a relatively large award.
Norrbom Vinding notes
that the decision reaffirms that not renewing a temporary contract is not the same as a dismissal and should therefore be dealt with under s 2 of the Danish Act on Equal Treatment of Men and Women, which means a shared burden of proof under s 16a of the same Act;
that the award given by the Danish Gender Equality Board for discrimination under s 2 of the Danish Act on Equal Treatment of Men and Women would seem to be at odds with the Supreme Court judgment reported in U2008.957H; and
that the issue of assessment of compensation in a situation such as this is currently before the Danish Supreme Court.