On November 11 2011 the Supreme Court ruled that an employer's decision to terminate the employment of a pregnant employee when her fixed-term contract expired did not fall under the rules regarding dismissal set forth in the Equal Treatment Act.
The case involved a temporary employee who, at the end of her fixed-term contract, was not hired for a vacant permanent position. The Supreme Court found that there was sufficient evidence to suggest that the temporary employee was rejected for permanent employment due to her pregnancy.
The temporary employee claimed that the case should be judged pursuant to Sections 9 and 16(4) of the Equal Treatment Act regarding dismissal due to pregnancy. She alleged that the reason for her not being offered permanent employment was due to her pregnancy and not for professional reasons. In contrast, the employer claimed that the decision not to offer the temporary employee the vacant permanent position was based on a number of private issues, and was not due to her pregnancy.
Decision
In agreement with the Eastern High Court, the Supreme Court found that not offering continued employment to a temporary staff member is not comparable to a dismissal. Therefore, the case was judged according to Sections 2 and 16a of the Equal Treatment Act, rather than Sections 9 and 16(4).
However, the Supreme Court found that there was a presumption that the employer had expressed the view that the employee could not be offered permanent employment due to her pregnancy and that the employer had failed to refute the evidence in this respect. The Supreme Court emphasised the importance of the fact that the temporary employee had carried out her work without any issues and that the job description for the vacant position was essentially the same as that of the temporary role.
The difference between rejecting a job applicant and dismissal due to pregnancy was of special importance in relation to the level of compensation. The High Court had awarded the employee compensation equivalent to six months' salary – on par with compensation granted under the Equal Treatment Act in dismissal cases. The Supreme Court disagreed with this and ruled that compensation should be fixed at Dkr25,000 in accordance with existing Supreme Court practice for violations of the Equal Treatment Act due to an employment rejection.
Comment
This judgment shows that rejecting a temporary employee for continued employment is not comparable to a dismissal, but must be treated as an application rejection for a new position. This is of specific importance in relation to compensation, which pursuant to existing Supreme Court practice is currently fixed at Dkr25,000.
Although only minor compensation was awarded in this case, the judgment shows that an employer must act cautiously in a situation where a pregnant temporary employee applies for a vacant position within the enterprise at the end of her temporary period.
For further information on this topic please contact Tina Reissmann at Plesner by telephone (+45 33 12 11 33), fax (+45 33 12 00 14) or email ([email protected]).