On 20 February 2012, the Supreme Court decided that an employer was to pay compensation under the Equal Treatment Act in connection with the dismissal of an employee due to pregnancy-related sickness. The Supreme Court found that, notwithstanding that the employer was neither aware of nor should have been aware of the pregnancy at the time of the dismissal, it was contrary to the Equal Treatment Act, and the employer was ordered to pay compensation. However, the ruling makes it possible for employers to avoid a similar situation in the future.

The employer dismissed a female employee (K) after K had been absent due to sickness for four days. At the time of the dismissal, the employer did not know about K's pregnancy, but according to the content of a doctors' statement it was considered uncontested that K's absence was due to pregnancy-related sickness and that the dismissal was based on her absence which was due to the pregnancy, except for one day.

The Court found that the pregnancy-related absence was covered by the protection of the Equal Treatment Act, notwithstanding the fact that the employer neither was nor should have been aware of the pregnancy at the time of the dismissal. However, it appears from the ruling that the employer's obligation to pay compensation in this situation is conditional on the fact that the employer does not change the decision to dismiss the employee after having become aware of the pregnancy.

As the employer did not change the decision after having been told about K's pregnancy, the Court found that the employer had acted contrary to the Equal Treatment Act, and on this basis, K was entitled to compensation which was fixed at six months' salary.

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The ruling makes it possible for an employer to reverse its decision when dismissing an employee in a situation where the employer neither knew nor should have known about the employee's pregnancy if it turns out later on that the employee was pregnant, and by reversing the decision the employer may avoid being in conflict with the Equal Treatment Act.

However, the ruling does not decide how quickly an employer must react after having received information on the employee's pregnancy in order to keep the opportunity of reversing the dismissal, including in which position the employer is placed if the employee has already resigned at the time when the employer becomes aware of the pregnancy. In this case, the employer was told about the pregnancy on the same day of the dismissal and therefore had sufficient time to reverse the decision.

If an employer is to have the opportunity to reverse a dismissal in a situation where the employer subsequently becomes aware of the employee's pregnancy, and the dismissal is thereby (specifically) contrary to the Equal Treatment Act, requirements should at the same time be made for the pregnant employee to notify the employer about the pregnancy without undue delay. If the employee doe not observe this duty, it should have consequences for the legitimacy of the requirement concerning equal treatment or the level of compensation.

It is important to determine that the ruling does not change present case law, according to which an employer - after a reasoned assessment - may dismiss a pregnant employee in connection with e.g. necessary cutbacks for the reason that she is dispensable. In this case, the employer can meet the reverse burden of proof, but the employer must prove the legitimacy of the dismissal.

For more information on the ruling, please see here.

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We have arranged a meeting on Tuesday 13 March 2012 at 8.30 when we will talk about social media, the most recent case law (e.g. this ruling) and the bill to amend the Holiday Act.

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

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Finn Schwarz

Managing Partner