The circumstances at the time of the dismissal are decisive - also in connection with the dismissal of a pregnant employee
28 October 2016
In connection with the Finance Act of 2011, demands for significant cutbacks were imposed on a university college. This led to a number of dismissals, including the dismissal of a pregnant employee. However, the employer was not informed of the pregnancy until after the decision to dismiss the employee had been taken. The Danish Supreme Court found that the dismissal was caused by the demand for cutbacks and neither wholly nor partially due to the employee's pregnancy. Nor was the fact that the employer subsequently failed to offer the employee a position that had been posted after the dismissal, but before the expiry of her employment, in contravention of the Danish Equal Treatment Act. This was established by the Supreme Court by a judgment of 25 October 2016.
The case involved a pregnant employee who was employed with a university college. As a consequence of a number of cutbacks, the employee was dismissed on 28 November 2011 to the effect that the employment would finally expire at the end of February 2012. The decision to dismiss the employee had been taken in September 2011 and was announced at a seminar for the works council on 20 - 21 September 2011. On 6 October 2011, the employer was informed of the employee's pregnancy.
The Supreme Court considered two questions in the case: Firstly, whether the dismissal could be regarded as having been wholly or partly due to the employee's pregnancy. Secondly, whether the employer had acted in contravention of the Danish Equal Treatment Act by not offering the employee a position that had become vacant during her notice period.
Regarding the question whether the dismissal was actually due to the employee's pregnancy, the Supreme Court - just like the City Court and the High Court - found that the decision to dismiss the employee had been made at a time when the employer was not aware of her pregnancy.
It is a general principle of employment law that the fairness of a dismissal must be considered in the light of the circumstances at the time of dismissal. The Supreme Court subsequently established that this also applies to dismissals under the Danish Equal Treatment Act.
The employee pointed out that in the period between the 6 October 2011 when the employer was informed of the employee's pregnancy and until the end of February 2012 when the employee had to leave the employment, the employer had four vacant positions to which the employee could have been relocated. The Supreme Court found, however, that a relocation to one of these vacancies would not have been a real alternative to the dismissal since three of these vacancies had already been occupied at the time when the employer learned about the employee's pregnancy and the employee did not have the necessary qualifications for the fourth vacancy.
Therefore, the Supreme Court established that the dismissal of the employee neither wholly nor partly was due to the employee's pregnancy.
Then the question remained whether the employer had violated Section 2 of the Danish Equal Treatment Act in view of the fact that after notice had been served, but before the employee left the employment, a relevant fixed-term position had become vacant.
In this respect, the Supreme Court found that since the employee had not applied for or shown any interest in the position in question, no violation of the Equal Treatment Act had taken place.
The judgment confirms that general principles of employment law regarding the fairness of a dismissal must be assessed on basis of the circumstances at the time of dismissal (UfR 2002.2026H and UfR 2005.886/2H). This also applies to the assessment of the lawfulness of a dismissal under the Danish Act on Equal Treatment.
The judgment also confirms previous case law (UfR 1997.1189H and UfR 2011.1776H) according to which the employer's possibility to relocate the employee must be taken into account when assessing whether the dismissal was actually due to pregnancy/maternity leave.
Furthermore, the judgment shows that if a dismissed employee does not show any interest in a vacancy that is advertised subsequently, the employer's failure to offer the employee the vacant position does not constitute an independent violation of the Equal Treatment Act.
The Supreme Court considered two questions in the case: Firstly, whether the dismissal could be regarded as having been wholly or partly due to the employee's pregnancy. Secondly, whether the employer had acted in contravention of the Danish Equal Treatment Act by not offering the employee a position that had become vacant during her notice period.
Regarding the question whether the dismissal was actually due to the employee's pregnancy, the Supreme Court - just like the City Court and the High Court - found that the decision to dismiss the employee had been made at a time when the employer was not aware of her pregnancy.
It is a general principle of employment law that the fairness of a dismissal must be considered in the light of the circumstances at the time of dismissal. The Supreme Court subsequently established that this also applies to dismissals under the Danish Equal Treatment Act.
The employee pointed out that in the period between the 6 October 2011 when the employer was informed of the employee's pregnancy and until the end of February 2012 when the employee had to leave the employment, the employer had four vacant positions to which the employee could have been relocated. The Supreme Court found, however, that a relocation to one of these vacancies would not have been a real alternative to the dismissal since three of these vacancies had already been occupied at the time when the employer learned about the employee's pregnancy and the employee did not have the necessary qualifications for the fourth vacancy.
Therefore, the Supreme Court established that the dismissal of the employee neither wholly nor partly was due to the employee's pregnancy.
Then the question remained whether the employer had violated Section 2 of the Danish Equal Treatment Act in view of the fact that after notice had been served, but before the employee left the employment, a relevant fixed-term position had become vacant.
In this respect, the Supreme Court found that since the employee had not applied for or shown any interest in the position in question, no violation of the Equal Treatment Act had taken place.
The judgment confirms that general principles of employment law regarding the fairness of a dismissal must be assessed on basis of the circumstances at the time of dismissal (UfR 2002.2026H and UfR 2005.886/2H). This also applies to the assessment of the lawfulness of a dismissal under the Danish Act on Equal Treatment.
The judgment also confirms previous case law (UfR 1997.1189H and UfR 2011.1776H) according to which the employer's possibility to relocate the employee must be taken into account when assessing whether the dismissal was actually due to pregnancy/maternity leave.
Furthermore, the judgment shows that if a dismissed employee does not show any interest in a vacancy that is advertised subsequently, the employer's failure to offer the employee the vacant position does not constitute an independent violation of the Equal Treatment Act.
