It is not enough that an employee undergoing fertility treatment to prove that actual circumstances exist giving reason to presume that differential treatment has been exercised. The Supreme Court therefore found that it was not contrary to the Equal Treatment Act that a temp undergoing fertility treatment was not offered a vacant position after the expiry of her temp job.

Background

In October 2006, a woman was employed as sales assistant in a super market replacing an employee on maternity leave. According to the contract, the temp job was to expire no later than August 2007. In December 2006, the temp informed the employer that she was going to start fertility treatments. The employer's reaction to this was - according to the temp - positive, and she was allowed to take the time off necessary in order to participate in such treatments.

When the temp job expired, she was not offered permanent employment, even though there had been a number of vacant positions during her temp period, and even though she had expressed interest in one of these vacant positions. After the effective date of termination, the temp commenced legal proceedings against the supermarket claiming compensation under the Equal Treatment Act. She claimed that she was not offered a new position due to the fertility treatments.

Under section 2 of the Equal Treatment Act, employers must treat men and women equal in connection with recruitments, transfers and promotions. Section 16a provides that a person who believes to be subject to discrimination under section 2 must first of all prove that actual circumstances exist giving reason to presume that differential treatment has been exercised.

The question was then whether the temp had proved that actual circumstances existed giving reason to presume that she was not offered one of the vacant positions due to her participation in the fertility treatments.

The Supreme Court ruling

The Supreme Court affirmed the Western High Court's ruling in favour of the supermarket as the Supreme Court - as well as the Western High Court - found that the temp had not proved that actual circumstances existed giving reason to presume that she was not offered one of the vacant positions due to her participation in the fertility treatments.

The Supreme Court stated that, when assessing this question, it may be included whether the company has many female employees and is therefore used to handle female employees' pregnancy. On the other hand, the size of the company is not in itself important.

The Supreme Court agreed with the comments of the Western High Court that importance should be attached to the fact that the temp did not have any experience working in a shop prior to the job, that neither the head of department nor the head of the supermarket found that she had made the progress to be expected, and that they were not satisfied with the performance of the temp in several respects. Importance was not to be attached to the fact that neither the head of department nor the head of the supermarket had formally pointed out the insufficient performance to the temp because she was to resign soon.

Comments

The Supreme Court ruling is advantageous to those employers who have employed women to replace employees on maternity leave. According to the ruling, these employers are not obligated to employ a temp solely based on her becoming pregnant or starting fertility treatment. Referring to the fact that the temp has started fertility treatment is not sufficient to prove actual circumstances under section 16a of the Equal Treatment Act if an employer can prove objective reasons for not offering permanent employment.

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

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Finn Schwarz

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