Member Article

By a decision of 18 October 2012 the Danish Board of Equal Treatment found that it was okay to dismiss an employee shortly after her return from maternity leave as it was not until that time that the outlook of the organisation had been established.

The matter involved an employee who was dismissed shortly after the expiry of her maternity leave. The employee argued that the decision to dismiss her had been made, while she was on maternity leave. Furthermore, the employee argued that she had been
discriminated against in that the employer did not want to extend the part of her maternity leave in which she received full pay by a period corresponding to that during which her premature daughter had been in the hospital. The employee claimed that this was a matter of discrimination as she referred to a male employee who a few months earlier had received pay during absence from work in
connection with the hospitalisation of his premature twins.

The employer claimed that this was not the case as a large restructuring of the company had been in course of preparation during the period in which the employee had returned to work and that it had not been decided until after her return that the department in which the employee worked was to be abolished. Moreover, the employee had not been moved to another position as the employer assessed that the employee did not have the necessary qualifications for working anywhere else in the company.  Furthermore, the employer referred to the fact that the situation of the male employee was a completely different scenario and thus a different internal budget.

The Board of Equal Treatment took into account that the employer was in the process of restructuring the company and that the employee was dismissed when it became clear how the new organisation should look. Consequently, the Board did not
find that it had been rendered probable that the decision to dismiss the employee had been made while she was still on maternity leave.

As such, it was for the employee to establish circumstances suggesting that she had been subject to discrimination. The Board did not find that the employee had established such factual circumstances to suggest that she had been discriminated against on the 
basis of her maternity leave.

With respect to the extension of her paid leave, the Board attached importance to the fact that the employee neither pursuant to the Consolidation Act on Entitlement to Leave and Benefits in the Event of Childbirth nor to the internal rules of the employer
had a right to be granted extension of the leave period by the five weeks that her daughter was in the hospital. As the employee had been on maternity leave whereas the male colleague had been on part-time sick leave, the Board came to the conclusion that these were two different situations. As such, the Board did not find that the employee had established factual circumstances suggesting
that she had been discriminated against due to her gender in connection with the lack of extension of her paid leave.

The decision shows that it is not important whether the employee is dismissed shortly after having returned from maternity leave if this is due to the employer not knowing at a previous stage how the new organisation is to look. Moreover, the decision shows that an extension of a paid leave cannot be compared with a paid part-time sick leave.