In a new Supreme Court judgment passed on 25 October 2016, the Danish Supreme Court decided whether a dismissal of a pregnant employee was in violation of the rules of the Danish Consolidation Act on Equal Treatment to Men and Women ("Ligebehandlingsloven"), including also to which extent the employer was under the obligation to reposition the employee.
On 15 August 2010, the claimant, employee A, was engaged as a marketing coordinator with the defendant, Professionshøjskolen/University College Nordjylland (UCN) to work 30 hours per week.
A number of requirements were imposed on the UCN by the 2011 Finance Act. As a consequence thereof, the UCN decided to dismiss a number of employees, including A, at a board meeting held on 19 September 2011.
After having made the decision to put A on the list of employees which the UCN intended to dismiss, the UCN was informed on 6 October 2011 that A was pregnant. A was then given notice of dismissal on 28 November 2011, i.e. during her pregnancy.
In the period between the notice of dismissal and her last working day by the end of February 2012, A thought there were more vacant positions to which she could have been relocated, including a specific advertised position, but that never happened.
The issue was therefore whether the UCN by the dismissal of A violated the Consolidation Act on Equal Treatment to Men and Women, sections 2 and 9, including section 16 (4).
A question in that respect was whether the UCN was under an obligation to reposition A, both in the period between the notice of her pregnancy and the notice of her dismissal and in the period between the notice of her dismissal and her last working day.
The High Court decided in favour of A stating that the UCN had not fulfilled its obligation of repositioning the employee, which is why the burden of proof had not been considered as fulfilled.
It appears from section 9 of the Act on Equal Treatment to Men and Women inter alia that an employer is not entitled to dismiss an employee because of pregnancy. If such dismissal takes place during the pregnancy, the employer will have to justify that the dismissal is not by reason of such pregnancy, cf. section 16 (4). This is a case of a so-called "reversed burden of proof" entailing that the entire burden of proof as to the justification of the dismissal not being by reason of pregnancy lies with the employer.
The Supreme Court determined that the general employment law principle according to which the reasonableness of a dismissal must be assessed on the basis of the circumstances at the time of the notice of the dismissal also applies to the assessment of the legality of a dismissal pursuant to the rules of the Act on Equal Treatment to Men and Women.
As to the assessment of whether the employer has satisfied his burden of proof pursuant to the Act on Equal Treatment to Men and Women it may - depending on the circumstances – be of importance if the employer has not used the opportunity, if any, to reposition the employee to a position that was vacant in the period up to the time of the notice of the dismissal or that was expected to become vacant within the notice period.
The Supreme Court went through the actual circumstances relating to four potential positions to which A had mentioned that she should have been repositioned to in the period from her notice of the pregnancy on 6 October 2011 to the notice of her dismissal on 28 November 2011, but then held that the UCN had justified that there were no relevant repositioning opportunities at the time of the notice of the dismissal.
The Supreme Court thereby also held that it had been justified that the dismissal had neither wholly nor partially taken place by reason of the pregnancy, cf. sections 9 and 16 (4) of the Act on Equal Treatment to Men and Women.
As to section 2 of the Act on Equal Treatment to Men and Women, the Supreme Court held that the UCN had not been obliged to offer A or inform A of an advertised position in the period from the notice of the dismissal to her last working day. The Supreme Court attached importance inter alia to the fact that A had neither applied for nor expressed any interest in the advertised position, which contradicts the High Court's premises regarding this issue.
Therefore, A was not entitled to any compensation pursuant to the Act on Equal Treatment to Men and Women, and the Supreme Court thus changed the judgment of the High Court and passed judgment in favour of the UCN instead.
Bird & Bird's Denmark's comments
By this judgment, the Supreme Court states that also with regards to the Act on Equal Treatment to Men and Women, the circumstances at the time of the notice of the dismissal are - above all - of relevance.
By this judgment, the Supreme Court loosens the obligations of the employer to reposition employees in cases where the employer has no knowledge at the time of the notice of dismissal of potential vacant positions during the notice period.