Skrevet af
In, or not in, fertility treatment?
An employee who was planning to undergo fertility treatment but had not yet started the treatment was not covered by the special protection against dismissal in the Equal Treatment Act.
Skrevet af
Malene Langermann-Nielsen
Forfattere
Employers are not allowed to dismiss employees on grounds of pregnancy. Case law has established that equivalent protection extends to employees who are trying to become pregnant through artificial insemination. In this case, the Western High Court had to decide whether the protection also covered an employee who was planning fertility treatment but had not yet started the treatment.
In March 2020, a fertility plan was made for the employee to undergo fertility treatment at a gynaecological clinic. At a company meeting held on 23 June 2020, the employee told her closest colleagues about her situation. However, there was a difference of opinion as to what information was shared in this context. During the trial, the employee explained that at the meeting she told her colleagues that a plan had been made for hormonal stimulation and egg retrieval for fertility treatment. The employee’s manager and several colleagues, on the other hand, explained that the employee only said that she would have eggs retrieved with a view to having them frozen, and that it was thus not mentioned that it was part of a current plan for fertility treatment.
When the employee returned to work after her summer holiday on 20 July 2020, she was dismissed for non-performance. In this regard, the employee claimed that the termination was in breach of the Equal Treatment Act, as the dismissal was based on her fertility treatment.
“Actualized possibility”
During the proceedings, the employee claimed that the protection against dismissal on grounds of pregnancy in the Equal Treatment Act also covers situations where fertility treatment is imminent, as the decisive factor must be whether the dismissal is based on the fertility treatment, irrespective of whether the treatment has not yet begun.
In this respect, the employer firstly argued that it had not been aware that the egg retrieval was carried out as part of a current plan for fertility treatment. Secondly, the employer submitted that the employee was not covered by the protection as, at the time of dismissal, there was no actual possibility of the employee becoming pregnant, as the fertility treatment had not yet begun.
In the High Court’s assessment of the case, the majority of the judges attached decisive importance to the fact that, according to case law, it is a requirement that an “actual treatment” has been initiated to actualize the possibility of becoming pregnant before the protection in the Equal Treatment Act can apply. Accordingly, it is not sufficient that a woman has been examined and that a plan for fertility treatment has been made, as this would be too far from the wording “on grounds of pregnancy” in the Act. The majority of the high court judges therefore found in favour of the employer.
In contrast, the minority of the high court judges found, in the same way as the district court, that the employee had to be considered as being protected under the provision on pregnancy in the Equal Treatment Act as, at the time of dismissal, the employee had undergone a final examination and there was a very close temporal connection between the agreed fertility plan, the planned consultation and the subsequent planned treatment. On this basis, the minority of the high court judges voted in favour of awarding the employee a compensation of DKK 150,000.
Norrbom Vinding notes
- that the judgment confirms the legal position established by the Supreme Court in this area; and
- that, in connection with fertility treatment, there must be an actualized possibility of pregnancy in order for the special protection against dismissal on grounds of pregnancy to apply.
The content of the above is not, and should not be a substitute for legal advice.
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