The Danish Board of Equal Treatment recently established that the reversed burden of proof on dismissal of employees who have recently become fathers applies for up to eight weeks after childbirth.
If an employer dismisses an employee who is pregnant or on childbirth-related or parental leave, the employer must prove that the employee was not dismissed for those reasons. But does the reversed burden of proof also apply when a father who returns from paternity leave is dismissed? This was the question before the Board of Equal Treatment in this case.
The case concerned a trainee with a real estate agency, who had been employed on 1 July 2016. In the period from 12 September until and including 25 September 2016, he was on paternity leave. When the leave ended, he only managed to work one day and was then given notice on 27 September 2016.
He was dismissed due to general dissatisfaction with his performance, and had been cautioned at a meeting and in an email already in early September that he needed to improve on a number of specific parameters, including increase productivity. The employee believed that he had been dismissed for taking paternity leave and considering whether to take parental leave as well. He then filed a complaint with the Board of Equal Treatment.
Lack of productivity
Before the Board of Equal Treatment, the employee argued that he was a good employee who focused on what was most important to the employer, noting that the atmosphere at work had suddenly changed when he informed them that his girlfriend was pregnant.
Initially, the Board had to consider which burden of proof rule applied, and although the dismissal had not taken place while an employee was pregnant or on leave – and therefore did not fall within the scope of the Danish Act on Equal Treatment of Men and Women – the Board held that the rules must be taken as meaning that fathers are protected by the reversed burden of proof until eight weeks after childbirth, which is when the deadline expires for employees to inform employers of their intention to take parental leave. In the assessment of whether the employer had discharged the burden of proof, the Board noted that the employer had cautioned the employee for his conduct and that the employee had been released from the duty to work in the notice period. On that basis, the Board was satisfied that the employee’s paternity leave and possible parental leave had not been a factor in the dismissal, regardless of its proximity in time to the parental leave.
The content of the above is not, and should not be a substitute for legal advice.
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