The Danish Supreme Court found that an employer had met the reverse burden of proof in a case involving a physiotherapist who was dismissed shortly after returning from maternity leave.
If an employee is fired during pregnancy or maternity leave under the Danish Equal Treatment Act, the employer must prove that the dismissal had nothing to do with these circumstances. But what does it take for an employer to satisfy the reverse burden of proof? The Supreme Court has recently dealt with this question.
The case was about a physiotherapist who reported sick in connection with pregnancy. The physiotherapist was on sick leave until the time she went on maternity leave. Shortly after the physiotherapist returned from maternity leave, she was fired. The dismissal was justified by the fact that due to a decrease in the influx of patients, it was necessary to reduce the number of physiotherapists to ensure the continued operation of the clinic.
The employee and her trade union believed that the dismissal was contrary to the Equal Treatment Act, and therefore brought an action against the employer.
After the Eastern High Court upheld the employee's action, the case ended in the Supreme Court.
It was agreed before the High Court and the Supreme Court that the reverse burden of proof applied, as it was clear from the evidence before the High Court that the decision to dismiss the physiotherapist had in fact been made while the physiotherapist was on maternity leave.
Before the Supreme Court, the employer argued that the dismissal of the physiotherapist had taken place after a thorough assessment of the employees' physiotherapy qualifications in relation to the clinic's future business situation, including the tasks to be performed in the future.
The employee and her professional organisation argued that out of the four physiotherapists who could be dismissed, the dismissed physiotherapist had the second longest seniority in the clinic. In addition, her work had not given rise to criticism. Against this background, the employee believed that the employer could just as well have dismissed one of the other physiotherapists, and that the burden of proof had therefore not been satisfied.
The Supreme Court's decision
The Supreme Court ruled that due to the decline in the number of patients, the clinic was forced to make a reduction in the number of physiotherapists.
Next, the Supreme Court ruled that there was nothing to complain about in relation to the dismissed physiotherapist's professional or personal qualifications. In this connection, the Supreme Court stated that the fact that the physiotherapist had not been able to build up further work experience or complete further professional development during her absence due to pregnancy and maternity leave should be disregarded.
However, the Supreme Court found that in relation to work experience, further education, and other factors, the other employees in question differed significantly from the dismissed physiotherapist. On that basis (and with regard to the presentation of evidence in general), the Supreme Court found that the employer had met the burden of proving that the dismissal of the physiotherapist was neither wholly or partly motivated by her pregnancy or maternity leave.
The employer was therefore held not to have breached the Equal Treatment Act.
Norrbom Vinding notes
- The decision illustrates that it is possible for an employer to discharge the reverse burden of proof under the Equal Treatment Act if there is a clear, operational basis for the dismissal.
- In this case, in making the decision to terminate the employee who was pregnant or on maternity leave in particular, emphasis was placed on objective criteria.
Moreover, there was nothing to indicate that emphasis was placed on pregnancy or maternity leave in the decision to dismiss the employee.
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