Heavy burden of proof discharged at the Supreme Court

According to the Supreme Court, the employer had discharged the reversed burden of proof in a case concerning a physical therapist who was dismissed shortly after her return from maternity leave.


If an employee is dismissed during pregnancy or maternity leave, the employer will have the onus of proving that the dismissal was not in any way connected with these circumstances, according to the Act on Equal Treatment of Men and Women. But what does it take for an employer to discharge the reversed burden of proof? The Supreme Court recently decided on this issue.

The case concerned a physical therapist who went on sick leave while she was pregnant. She remained on sick leave until the time when her maternity leave started. Shortly after the employee’s return from maternity leave, she was dismissed. The ground for the dismissal was the employer’s, a physiotherapy clinic’s, need to reduce its physiotherapist staff, thus ensuring the continued operation of the clinic, as a result of a drop in the number of patients.

The employee and her trade union believed that the dismissal was in conflict with the Act on Equal Treatment Act of Men and Women and therefore issued proceedings against the employer.

After the Eastern High Court found in favour of the employee, the case ended up in the Supreme Court.

The High Court and the Supreme Court agreed that the reversed burden applied because, based on the evidence presented in the High Court, it was evident that the employer’s decision to dismiss the employee had been made during the employee’s maternity leave.

In the Supreme Court, the employer argued that the employee had only been dismissed after the employer had thoroughly evaluated all its physical therapists’ qualifications in relation to the future operation of the clinic, including the tasks and work to be performed going forward.

In this regard, the employee and her trade union argued that, out of the four physical therapists who might be selected for dismissal, the dismissed employee was the physical therapist with the second-longest seniority at the clinic and that her work had never given cause for criticism. On that basis, the employee believed that the employer might as well have dismissed one of the other physical therapists and that, for this reason, the employer had failed to discharge the burden of proof.

Supreme Court decision
The Supreme Court took into account that the employer had no choice but to reduce its physiotherapist staff because of the decrease in the number of patients.

The Supreme Court also noted that the dismissed employee’s personal or professional qualifications could not be faulted. In this connection, the Supreme Court stated that the fact that the employee during her absence due to pregnancy and maternity leave had been unable to expand her work experience or complete further training had to be disregarded.

The Supreme Court found, however, that the other relevant physical therapists at the clinic were materially distinct from the dismissed employee in terms of work experience, further training, etc. Consequently (and based on the evidence presented), the Supreme Court held that the employer had discharged the burden of proving that the employee’s dismissal was neither wholly nor partly based on pregnancy or maternity leave.

Accordingly, the Supreme Court found in favour of the employer.

Norrbom Vinding notes

  • that the judgment shows that it is possible for employers to discharge the reversed burden of proof under the Act on Equal Treatment of Men and Women if there are clear, operational grounds for the dismissal;
  • that the employer’s decision to dismiss the employee in question during pregnancy/maternity leave was based on objective criteria; and
  • that there was no indication that the employer had attached any weight to the employee’s pregnancy/maternity leave when making the dismissal decision.

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

More about the subject