On February 20 2012 the Supreme Court ruled on a case regarding dismissal for absence due to illness where the employer was unaware that the illness was caused by pregnancy.
An employer dismissed an employee, who had five weeks of seniority, due to her absence from work. However, the majority of the employee's absence was caused by pregnancy-related illness. At the time of the dismissal, the employer did not know that the employee was pregnant or that her absence was due to pregnancy-related illness.
In its judgment the Western High Court referred to the EU Equal Treatment Directive and a ruling of the European Court of Justice stating that the directive presents an obstacle to national statutory provisions stipulating that compensation for discrimination is contingent on the employer's liability. Against this background, the court found that the prohibition set forth in Section 9 of the Equal Treatment Act must be understood to the effect that it is unimportant whether, on basis of the submitted evidence, it can be concluded that the employer did not know of the employee's pregnancy at the time of the final decision to dismiss the employee.
In line with the decision of the high court, the Supreme Court declared that the purpose of Section 9 of the act must be understood to the effect that it includes dismissals by reason of pregnancy-related absence due to illness even if the employer, at the time of the dismissal, was neither aware nor ought to have been aware of the employee's pregnancy. However, at the same time, the Supreme Court acknowledged that this was a special situation and that the employer's obligation to pay compensation should be conditional on the employer failing to withdraw the dismissal once it learned about the pregnancy.
Since the employer in this case had not reversed the decision to dismiss the employee after realising that the absence was pregnancy-related, the employer had acted in contravention of the Equal Treatment Act.
Therefore, the employee was awarded compensation of six months' salary.
The judgment shows that employers risk contravening the Equal Treatment Act and being ordered to pay compensation if they dismiss employees on the grounds of absence due to illness which subsequently turns out to be pregnancy-related. This also applies even if the employer is unaware of the pregnancy at the time of dismissal. However, according to the judgment, the employer may avoid having to pay compensation pursuant to the act if the dismissal is cancelled once the employer learns that the absence was pregnancy-related.
The judgment seems to be far-reaching. However, the Supreme Court's reasoning covered only dismissals by reason of absence due to illness where it subsequently turns out that the illness was pregnancy-related. Thus, there are no indications that the judgment will be of importance to other dismissal situations within the scope of the Equal Treatment Act. In such situations, it must still be assumed that it is the actual knowledge of the employer at the time of deciding the dismissal that is decisive with regard to the question of whether the dismissal contravenes the Equal Treatment Act, unless the employer can otherwise prove that there was a fair reason for the dismissal.
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]).