Protection against dismissal in case of fertility treatment

The Supreme Court has decided when the protection of section 9 of the Equal Treatment Act concerning pregnancy is to apply in connection with an employee's fertility treatment. The Court found that section 9 of the Act cannot be extended to cover the period prior to the time when the actual fertility treatment began.

The actual case concerned an employee who was dismissed at the end of November 2008 due to shortage of work as the production had been closed down. Shortly before the dismissal, the employee had been referred to a fertility clinic by her own doctor for the purpose of examination and treatment. The employee claimed that the dismissal was based on the fertility treatment thereby being contrary to section 9 of the Act, particularly, in view that the legislative history behind the Act does not distinguish between analysis/examination and actual treatment against infertility.

With reference to the grounds of the Western High Court, the Court found that, based on the legislative history behind the Act, the dismissal was not covered by section 9 of the Act as protection against dismissal cannot be extended to cover the period prior to the time when the actual fertility treatment began. The protection does therefore not cover the analysis/examination stage for the purpose of clarifying which fertility treatment to offer the woman.

The Court took into account that, at the time of the dismissal, the employee had not started the actual treatment, which could perhaps result in the employee becoming pregnant, and on this basis, the dismissal was not covered by section 9 of the Act.

Both the Western High Court and the Supreme Court further ruled that the dismissal was based on reasons of operation and, consequently, the dismissal was fair.

One judge stated that the protection against dismissal under section 9 should generally come into force at the time when the woman was referred to the hospital or the fertility clinic for the purpose of becoming pregnant by way of fertility treatment taking into consideration that the woman was already at that time trying to become pregnant by way of artificial insemination. However, the judge agreed that the dismissal in the specific case was based on reasons of operation.

The content of this Newsletter is not, and should not replace, legal advice.

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Marianne Lage

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