Reversed or shared

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.‎

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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.

Norrbom Vinding notes

  • that, in light of the wording of the preparatory notes to the Act on Equal Treatment of Men and Women, ‎it is surprising that the Board of Equal Treatment would interpret the Act to the effect that for fathers, a ‎reversed burden of proof applies until eight weeks after childbirth, which is when the deadline expires ‎for employees to inform employers of their intention to take parental leave; but
  • that the decision of the Board also emphasises, however, that in practice it is hardly of any significance ‎whether the burden of proof in these types of cases is shared or reversed as the courts seem to take a ‎pragmatic approach to assessing evidence, and the outcome will thus be determined by the facts of ‎each individual case; and
  • that it is generally important to note that the burden of proof will also be reversed during the periods ‎when a father is taking paternity and parental leave.

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

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