A pregnant employee was entitled to compensation under the Equal Treatment Act as a result of a material change to her maternity leave terms even though she had not left her position.

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Employers are not allowed to dismiss or treat employees less favourably on grounds of pregnancy. In this case, the Supreme Court had to decide whether an employee whose maternity leave terms had been changed was entitled to compensation under the Equal Treatment Act, even though she had not regarded the changed terms as a dismissal.

The case concerned an unskilled employee who, in September 2016, informed her employer that she was pregnant. It was stated in the employee’s employment contract that she was entitled to pay during maternity leave in accordance with the Industrial Agreement but then, in November 2016, the employer changed its maternity leave terms with effect from 1 December 2016. The change meant that the employees were only entitled to maternity benefits during maternity leave.

Because of the change, the employee would thus receive a lower pay and would not receive pension contributions during her maternity leave. The employee continued her employment on the changed maternity leave terms but on the first day of her maternity leave, she filed a complaint with the Board of Equal Treatment regarding the changed terms. After the end of the maternity leave, the employee returned to her position on the changed terms.

According to the judgment by the high court, the employee was not entitled to compensation as she had continued her employment on the changed terms and conditions.

In the Supreme Court, the employee claimed that the change in the employer’s maternity leave terms was caused by the employee’s pregnancy and upcoming maternity leave, so the change in terms and conditions was thus in breach of the Equal Treatment Act, and that it was not a condition for receiving compensation under the Act that she had left her position after the change in terms and conditions.

In this regard, the employer argued that the terms and conditions of all its employees had simply been clarified and, further, that it was a condition for receiving compensation under the Equal Treatment Act that the employee had actually been dismissed or considered herself as dismissed by not accepting the alleged change in terms and conditions.

Compensation was not conditional on termination of employment
The Supreme Court stated that it is generally not a condition for being awarded compensation under the Equal Treatment Act that the employee in question leaves their position.

In relation to the specific case, the Supreme Court found that the change of the employee’s maternity leave terms constituted a material deterioration of her terms and conditions of employment, and since the employer had not proven that the change was not based on the employee’s pregnancy, the change was in breach of the Equal Treatment Act.

Furthermore, the Supreme Court held – in contrast to the high court – that the employee had not forfeited the right to compensation under the Equal Treatment Act because of inaction, even though she had not informed the employer that she did not accept the change until she started her maternity leave and, at the same time, submitted a complaint to the Board of Equal Treatment.

Accordingly, the Supreme Court awarded the employee a compensation of DKK 50,000.

Norrbom Vinding notes

• that the judgment confirms that the protection in the Equal Treatment Act covers dismissal as well as other types of less favourable treatment due to pregnancy, leave of absence, etc. and establishes that it is not a condition for being awarded compensation that the employee in question leaves their position; but
• that it has an impact on the calculation of the compensation under the Equal Treatment Act if the employee leaves their position as a consequence of, for example, the change in terms and conditions of employment. 

The content of the above is not, and should not be a substitute for legal advice.