An employer’s wish to help a dismissed employee by giving an incorrect dismissal reason in the termination letter could not lead to the principle of equal treatment not being breached.

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According to the Equal Treatment Act, employers are not allowed to dismiss employees due to pregnancy or maternity and parental leave. In this case, the Western High Court had to decide whether the dismissal of an employee shortly after returning from maternity and parental leave was in breach of such protection.

The case concerned a woman who was employed as a rider to work with young horses. Shortly after returning to work after her maternity and parental leave, the employee was dismissed. According to the termination letter, the dismissal was due to the employer’s wish to restructure the organisation.

Shortly after the dismissal, the employer explained to the employee that the termination was actually based on the fact that, according to the employer, the employee had indicated that she no longer wanted to ride young horses, but instead preferred older and safer horses.

The employee subsequently brought proceedings against the employer, claiming that she had been dismissed due to her maternity and parental leave and, thus, in breach of the Equal Treatment Act, noting that she had been dismissed shortly after returning to work following the end of her maternity and parental leave.

During the proceedings, the employer argued that there was no connection between the dismissal and the employee’s pregnancy and subsequent maternity and parental leave. The employer explained that the real reason for dismissing the employee was the employer’s realisation that the employee no longer wanted to ride young horses. As the employee did not have the qualifications to ride older horses, the employer therefore had no choice but to terminate the employment relationship.

The employer further explained that the choice of dismissal reason in the termination letter was based on a wish to help the employee, as the employer believed that the employee would be better off if it was stated in the termination letter that the dismissal was due to a restructuring, most likely because the employer would otherwise have to explain that the employee had been unwilling to carry out the tasks she was employed to perform and that she did not have the necessary qualifications to perform other tasks.

The employee claimed that the dismissal reason was incorrect and contested that she had told the employer that she did not want to ride young horses. Due to the close connection in time between the employee’s return from maternity leave and the dismissal, there was thus – in the employee’s opinion – a presumption of the dismissal being fully or partly based on the employee’s pregnancy and subsequent maternity and parental leave.

Wrong reason could indicate discrimination
In its judgment, the Court attached importance to the fact that the timing of the employee’s dismissal was closely connected to her resuming work after the end of her maternity and parental leave. In addition, the Court took into account that the written termination letter provided an incorrect reason for the dismissal.

Accordingly, the Court found that there was a presumption of direct or indirect discrimination on the grounds of the protected characteristic. The employer’s explanation that the incorrect reason in the termination letter was motivated by a wish to help the employee could not change this.

As the employer had not satisfied the onus of proving that the principle of equal treatment in the Equal Treatment Act had not been breached, the employer was ordered to pay a compensation equivalent to 9 months’ salary to the employee. 

Norrbom Vinding notes

• that the judgment highlights the fact that it is of course important for the termination letter to provide the real reason for the dismissal; and

• that in a situation where the dismissal reason is based on the employee’s indication that there are tasks they no longer wish to perform, it is important that the employer obtains written documentation in this regard before proceeding to termination of the employment relationship, and this is obviously particularly important in situations where employees have special protection against dismissal. 

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