Background
The case concerned a female employee with nine months of seniority in the company at the time of the dismissal. In the summer of 2020, she initiated the process for fertility treatment. She had completed all preparatory medical steps, received formal approval and a detailed treatment plan with hormone therapy and egg retrieval scheduled to begin shortly after her return from summer holiday. A few days before her summer holiday, she informed her manager and colleagues of the planned treatment. The employee was dismissed on the day she returned from holiday, without any written explanation. The employer cited performance concerns orally, none of which were, however, documented in writing.
Danish District and Western High Court: Crucial Whether Treatment Had Commence
In both the Danish District Court and the Western High Court, the case initially centered on whether Section 9 of the Danish Equal Treatment Act (the "Act") applied. This provision prohibits discrimination in connection with pregnancy and similar medical situations. The District Court ruled in favour of the employee based on the incorrect assumption that hormone treatment had already commenced at the time of dismissal. However, the parties later clarified that treatment began only after the dismissal. On this basis, the Western High Court concluded that the case fell outside the scope of Section 9, reaffirming the Supreme Court's earlier interpretation that actual, physical treatment must have started for Section 9 to apply, and that preparation in itself is insufficient.
A Judgment of Principle: The Intention to Become Pregnant Triggers Protection
When the case reached the Danish Supreme Court — which as a third instance only hears matters of general legal significance — the employee introduced a new legal argument based on Section 4 of the Danish Equal Treatment Act - the general prohibition against gender-based discrimination. The Supreme Court's majority agreed with the Western High Court that Section 9 did not apply, as protection under this provision requires that fertility treatment has actually begun. However, the majority found that the general prohibition against dismissal on grounds of gender in Section 4 had been violated even though the fertility treatment had not yet been started.
The Supreme Court held that an employee may still be protected under Section 4 if the dismissal is considered as motivated by her intention to become pregnant, e.g., through planned fertility treatment. Because the dismissal occurred immediately after the employee had disclosed her specific treatment plans, the burden of proof under Section 16a shifted to the employer. In the specific case, the employer failed to prove that the dismissal was unrelated to the employee's fertility plans. Therefore, the Supreme Court awarded the employee a compensation of DKK 150,000, corresponding to six months' salary in addition to her salary during the notice period.
Despite the judgment being based on Section 4, the compensation level matched what is usually awarded pursuant to Section 9, suggesting that employers may face similar risks on payment of compensation for discrimination even where no actual fertility treatment has commenced.
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