Dismissal of pregnant employee

Date 11 maj. 2010

The Western High Court agreed with an owner of a shop that dismissal of a pregnant employee was reasonably motivated in the critical economic situation of the shop and because of this, the owner did not need to pay any compensation to the employee.

 

The case in brief

A female employee who was employed as a sales assistant in a shop was dismissed a month after she had informed the owner of her pregnancy. The woman was the only permanently employed staff and was relieved once a week by the owner and a youth assistant.

 

Besides the shop, the company was made up of a workshop where the owner had worked until the dismissal. After the dismissal, the owner himself handled both the shop and the workshop.

 

The employee raised a claim against the shop for compensation. The employee claimed that the dismissal was motivated in the pregnancy.

 

The legal background

According to the Equal Treatment Act, Section 9, an employer is not allowed to dismiss an employee due to pregnancy, maternity or adoption.

 

If an employee is dismissed while being pregnant or during maternity, it is up to the employer to prove that the dismissal was not motivated in these circumstances, cf. the Equal Treatment Act, Section 16 (4).

 

If a dismissal is against Section 9, the employer has to pay compensation to the employee, cf. the Equal Treatment Act section 16 (2). The compensation is determined by estimation and may be as high as 78 weeks’ salary (1.5 years).

 

The ruling of the High Court

The High Court emphasized that the turnover of the shop was the same as the year before, but that cost of goods sold had increased and that the gross profit, therefore, was decreased. To meet economic trouble, the owner of the shop had already made a cut in his own salary. The shop’s accountant had emphasised that the owner had to take further steps to improve the economic situation of the shop.

 

On the basis of these facts, the High Court considered it proven that the dismissal was motivated in the shop’s need to reduce its expenses.

 

As the female employee was the only permanently employed staff, the owner had no choice but to dismiss her.

 

The High Court believed that the owner had proven that the dismissal of the employee was necessary and not in conflict with the Equal Treatment Act. Therefore, judgement was given in favour of the shop.

 

Review

The ruling proves that there is no general ban on dismissing a pregnant employee. A dismissal will be legal if it is reasonably motivated in other facts.

 

In a new ruling from the Board of Equal Treatment (67/2009), the Board had to decide whether a dismissal of a female employee, dismissed on the day she returned from maternity leave, was legal or not. The employer had not, at any time prior the dismissal, told the employee that the work performed was unsatisfactory. The employer could not show any documentation proving that this employee was the one which the company could best do without. Therefore, the Board of Equal Treatment decided that the employer had not proven that the dismissal was not motivated in the employee’s maternity leave.

 

In another case from the Board of Equal Treatment (2/2010), the Board treated a question about an employee on maternity leave. The Board did not believe that the company was economically distressed to a degree that made a dismissal necessary. Furthermore, the Board assessed that the company hadn’t explained why it was the employee on maternity leave that had to be dismissed. The Board emphasised that the employee was the only one of six employees in the same position that was dismissed. The company had not proven that the dismissal was reasonably motivated in other circumstances than the maternity leave, and the employee was granted compensation.

 

It may be concluded that the burden of proof is hard to lift, which is suggested by all three rulings. The shop in the ruling first mentioned, managed to do so, because the shop presented clear evidence saying that the shop was economically distressed and that the employee was the only one who could be dismissed, because of her status as the only permanently hired employee.

 

In the following two cases from the Board of Equal Treatment, the companies did not manage to explain why the dismissed employees were the ones that needed to be dismissed.

 

When dismissing pregnant employees or employees on maternity leave, the employer should carefully evaluate each employee and make sure that the choice of exactly the employee who is pregnant or on maternity leave is reasonably motivated. If an employer, has a choice between more than one employees in cases where staff must be cut, it will be very difficult to prove that the employee who is pregnant or on maternity leave is the one who is most dispensable.

 

 

If you have questions regarding the above or require additional information about dismissals, please contact attorney Pernille Nørkær (pno@mwblaw.dk) or junior associate Lotte Witt (lwi@mwblaw.dk).

 

The above does not constitute legal counselling and Moalem Weitemeyer Bendtsen does not warrant the accuracy of the information. With the above text, Moalem Weitemeyer Bendtsen has not assumed responsibility of any kind as a consequence of a reader’s use of the above as a basis of decisions or considerations.