Stability of attendance, not leave

The dismissal of an employee who called in sick on the first day after a period of childbirth-related leave and holiday was not in conflict with the Act on Equal Treatment of Men and Women.

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Employers are not allowed to dismiss employees wholly or partly on the grounds of childbirth-related leave. This would be in contravention of the Act on Equal Treatment of Men and Women. The burden of proof is reversed if the employee is dismissed during childbirth-related leave. Otherwise, the burden of proof is shared between the employee and the employer. In this case, the Western High Court had to decide if a production worker who was dismissed shortly after returning from childbirth-related leave had discharged the burden of proof by establishing facts suggesting that the employee’s childbirth-related leave had been a factor in the dismissal decision.

The case involved a production worker at a company that sold products to restaurants and caterers. The production worker had been on childbirth-related leave and then took holiday in continuation of the leave. On the first day of work after her holiday, the employee called in sick. Two days later the employee was dismissed by the employer, citing a drop in orders. The employee was selected for dismissal e.g. because she had had a considerably higher sickness absence rate (not pregnancy-related) than the other employees over an extended period of time.

The production worker and her trade union believed that the close temporal connection between the childbirth-related leave and the dismissal indicated that the dismissal was based on the leave. In addition, according to the production worker the company had not proved that it had in fact experienced a drop in orders, and the case therefore ended up in the Western High Court.

Not because of childbirth-related leave
Both the district court and the High Court found in favour of the company. The production worker had not established facts indicating that her childbirth-related leave had been a factor in the decision to terminate the employment.

The company had shown that the inflow of orders had dropped significantly around the time of the production worker’s dismissal and it had therefore been necessary for the company to lay off staff. The High Court took into account that the company had based the dismissal decision on objective criteria such as qualifications and stability of attendance. Accordingly, the dismissal was not inconsistent with the Act on Equal Treatment of Men and Women.

Norrbom Vinding bemærker

  • that the judgment exemplifies that if the dismissal of an employee has a close temporal connection with the employee’s return from childbirth-related leave, it does not automatically raise a presumption of discrimination.

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

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