By Yvonne Frederiksen, Firm: Norrbom Vinding
In a recent decision, the Danish Equal Treatment Board held that it was not contrary to the Equal Treatment Act to terminate an employee’s contract shortly before he became a father.
Under the Danish Equal Treatment Act, an employer must not discriminate against an employee because of pregnancy or maternity leave. If a termination occurs during pregnancy, it is the employer who must prove that the reasons for the termination are not related to the pregnancy. This applies regardless of whether it is the termination of an expectant mother or father.
The case was about a male employee who was employed by a small company. In June 2017, the employee's manager insisted to the employee that his work performance, attitude, energy and passion in relation to the work needed to improve.
Some months after the meeting, the employee reported that his girlfriend was pregnant.
In January 2018, two months before the employee's girlfriend's due date, the manager decided that the employee had not improved his efforts sufficiently. The manager therefore informed the employee that the employment would be terminated, and offered him the possibility of entering into a severance agreement. The employee did not want to accept this offer, and as a result his employment was terminated.
Termination due to girlfriend's pregnancy?
Following the termination, the employee made a claim for compensation under the Equal Treatment Act, because he believed that the termination was motivated by his girlfriend's pregnancy and his future absence in connection with it.
The employer stated that the dismissal was solely due to the employee's inadequate performance, about which he had been warned six months before the termination. In addition, the employer noted that at the time notice of termination was given, the employee had not expressed a wish to take leave in connection with the birth.
The Equal Treatment Board found that the employer had met the burden of proof for demonstrating that the termination was not related to the employee's girlfriend's pregnancy. The committee emphasised that the employee's girlfriend's pregnancy had not been mentioned in the course and that the employee had not expressed a wish to take up paternity or parental leave prior to the termination.
The employer was therefore acquitted.
Norrbom Vinding notes
This decision illustrates that it is not contrary to the Equal Treatment Act to dismiss an expectant father when the dismissal is not wholly or partly motivated by the pregnancy and the employer can meet the burden of proof for this.
The fact that an employee is dismissed very shortly before becoming a parent does not necessarily mean that the employer cannot meet the burden of proof and demonstrate that the termination was not related to the pregnancy.