THE DANISH SUPREME COURT DECIDED THAT THE DISMISSAL OF AN EMPLOYEE DUE TO HER SICKNESS ABSENCE CAUSED BY HER PREGNANCY BREACHED THE DANISH EQUAL TREATMENT ACT - EVEN THOUGH THE EMPLOYER NEITHER KNEW NOR OUGHT TO HAVE KNOWN THAT THE ABSENCE WAS RELATED TO PREGNANCY

- Impact date: 20 February 2012

A female employee (M) was employed as a social and health care assistant in a company (A). In late March 2008, M suffered nausea and vomiting, which forced her to report sick. A few days later, M found out she was pregnant.

Subsequently, M reported sick. During the conversation, M did not mention the cause of her illness.

Within a week, M's employment with A was terminated due to her recurrent absences, including her current leave of absence.

M claimed compensation equal to 6 months' salary, arguing that the dismissal was motivated by her pregnancy and that according to ECJ case law it is irrelevant whether or not the employer knew of the pregnancy when the dismissal is motivated by absences due to pregnancy-related illness.

A claimed that the pregnancy had not been the reason for dismissal because the employer neither knew nor should have known that she was pregnant when taking the decision to dismiss.

The Supreme Court stated that under section 9 of the Equal Treatment Act, an employer may not dismiss an employee due to pregnancy-related absence. The Supreme Court found that according to its purpose, the provision must be understood to include dismissal for absence due to pregnancy, even if the employer at the time of dismissal neither was nor ought to have been aware of the pregnancy.

The Supreme Court went on to state that an employee will only be entitled to compensation if the employer does not reverse the decision to dismiss after being informed of the pregnancy.

The Supreme Court considered this legal position to be compatible with EU rules and ECJ case law.

Therefore, the Danish Supreme Court found that the dismissal was motivated by M's absence, that the absence was caused by pregnancy and that the employer had not reversed its decision to dismiss M after being informed of her pregnancy. Therefore, the court gave judgment in favour of M.

Compensation was set at 6 months' salary in accordance with the Equal Treatment Act and customary practice.

AN AMENDMENT TO THE DANISH HOLIDAY ACT, CAUSED BY THE PEREDA JUDGMENT, CASE C-277/08, ENTITLES EMPLOYEES TO TAKE HOLIDAY AT ANOTHER TIME THAN SCHEDULED IF THE EMPLOYEE IS ON SICK LEAVE AT THE TIME OF THE SCHEDULED HOLIDAY

- Impact date: 1 May 2012

In order to bring Danish legislation on holiday entitlement into compliance with EU case law, the Danish Holiday Act has been amended.

The amendment provides that if an employee who is on holiday leave falls ill and is forced to go on sick leave, the employee is entitled to take the holiday at another time. As the Working Time Directive only provides for 4 annual weeks of holiday and the Danish Holiday Act provides for 5 weeks, employees are only entitled to reschedule holiday to another time if, during their annual leave, they fall ill and go on sick leave for a period in excess of 1 week. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.