Compensation to woman dismissed after having claimed equal pay

A woman has been awarded compensation for violation of the Equal Pay Act when being dismissed after having claimed equal pay (victimization). In addition, the woman was awarded compensation under the Equal Treatment Act and a back-dated pay adjustment as she had not been invited to the annualp performance review/pay discussion while being on maternity and parental leave.

Background

The woman was employed with purchasing, went on maternity leave in August 2006 and returned in September 2007. During her leave, she was not invited to the usual annual performance review/pay discussion. She therefore received no pay increase unlike her other colleagues.

At the next annual performance review/pay discussion, she was not satisfied with the pay increase granted, and she informed her employer that she was disappointed about the increase, and that she had not been recommended for higher pay due to her leave.

Shortly after, she was dismissed due to co-operative difficulties.

Supreme Court ruling

The question concerning re-adjustment of pay

The first question for the Supreme Court to decide on was whether the woman had been discriminated against in terms of pay contrary to the Equal Pay Act.

Under section 1 of the Equal Pay Act, no discrimination on the grounds of sex may take place contrary to the Act. The employer must provide equal pay to men and women, including equal pay conditions for the same work or work given the same value. If an employee, who believes to be discriminated against, can prove actual circumstances giving reason to presume that differential treatment has been exercised, it is for the employer to prove that the principle on equal treatment has not been violated.

The Supreme Court found that differential treatment has been exercised contrary to the Equal Pay Act when a woman has been deprived of a pay increase because she is on maternity or parental leave. It was of no importance whether the woman's pay was lower than the aggregate pay for comparable employees of the opposite sex.

The other employees who had obtained pay increases after the annual performance review/pay discussion, had in average obtained more than DKK 700 per month. The Supreme Court then found that actual circumstances had been proved giving reason to presume that the principles on equal pay had been violated. The employer could not prove that the principle had not been violated. The woman was therefore entitled to a re-adjustment of her pay by DKK 700 per month with effect from the day she returned from her leave.

The question concerning compensation for violation of the Equal Treatment Act

Section 4 of the Equal Treatment Act provides that an employer must treat men and women equally as regards working conditions.

The employer recognised having violated section 4 as the woman had not been invited to the annual performance review/pay discussion during her leave. The woman was therefore awarded compensation of DKK 10,000 for violation of the Equal Treatment Act.

Question concerning dismissal contrary to the Equal Pay Act

Finally, the Supreme Court was to decided on the question whether the dismissal was contrary to section 3 of the Equal Pay Act (victimization) stating that an employer may not dismiss an employee for having made a claim for equal pay.

By way of e-mails to her superior, the woman had claimed equal pay, and shortly after, she was dismissed. It therefore rested on the employer to prove that the dismissal had not taken place due to her claim for equal pay.

As a reason for the dismissal, the employer stated co-operative difficulties. However, after having assessed the evidence, the Supreme Court found no grounds for determining that the woman had acted in a way giving rise to co-operative difficulties.

The employer had therefore not proved that the dismissal was not based on the woman having claimed equal pay. She was therefore also awarded compensation equivalent to six months' pay for violation of section 3 of the Equal Pay Act.

Comments

The number of Danish rulings concerning violation of the Equal Pay Act are quite few, but the Supreme Court has now had the opportunity to decide on the Act, and in particular, on the level of compensation. Compensation in case of lack of pay adjustment was already decided upon in 2003 by the Western High Court in another case at DKK 10,000 according to the Equal Treatment Act, which level has now been affirmed by the Supreme Court.

The Supreme Court fixed compensation for dismissal contrary to the Equal Pay Act "taking into consideration the length of service and the other facts of the case", see section 3 (3) of the Equal Pay Act. The Supreme Court attached importance to the fact that the woman had been employed with the company since 1 August 2000, and taking into consideration the nature of the situation, compensation could appropriately be fixed at six months' pay. This is somewhat lower than the general level of compensation under the Equal Treatment Act and the Anti-Discrimination Act in case of dismissal of employees having been employed for many year, but at the same time, it is also in line with a ruling from the Maritime and Commercial Court from 1998 which also concerned victimization.

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

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