The Danish government has released two Bills for public consultation aimed at ensuring gender equality in the business sector.

- Impact date: Fall / autumn 2012

The Bills are seen as innovative as they impose obligations on approximately 1,100 of the largest Danish businesses to set targets and policies explaining how they intend to increase the share of the underrepresented sex in their business.

The Bills aim to ensure a more equal distribution of men and women in Danish boardrooms (the supreme governing body).

If / when they are passed, they are expected to change the gender distribution in Danish board rooms significantly.

Consultation on the Bills is taking place following a debate raised by Danish Minister for Gender Equality and Ecclesiastical Affairs to establish how the number of women on boards may be increased in companies.

Under the proposals contained within the Bills:

  1. Companies will set targets for the underrepresented gender on their boards.In most companies, women are the underrepresented sex and in the vast majority of cases the supreme governing body will be the board of directors.
  2. The obligation to define targets means that the businesses are required to determine the share (expressed also as number of board members) of the underrepresented gender and specify the time required to achieve this share.
  3. Companies will be required to establish a policy aimed at increasing the share of the un-derrepresented sex at all management levels and not only on the board of directors.However, this requirement only applies to companies with more than 50 employees.The policy must describe how the company intends to obtain a more equal gender distribution.An equal share of gender is defined as 40/60%.Non-compliance with the bills will be punishable by a fine.

Similar regulations at EU level

Regulations corresponding to the two new Bills may now be introduced to companies at EU level.

The European Commission has previously been a proponent for the introduction of female quotas, but, until now, has only implemented voluntary arrangements such as last year when the Commission encouraged companies in the European Union to agree to comply with female quotas of 30 and 40 per cent in 2015 and 2020 (respectively).

Now the European Commissioner of Justice has proposed a new Directive which will be presented in the autumn.The proposal implies that in large listed companies in EU member states, women must constitute 40 per cent of the board of directors in 2020.However, the proposal will not apply to companies with less than 250 employees or with annual revenues below 50 million Euros.

If the member states do not meet the quotas, they may be punished by fines, deprived of government grants or excluded from public tender procedures.

The Danish Supreme Court has ruled that a dismissal caused by an adjustment of working hours was in violation of section 4a of the Danish Act on Part-time Employees. The employee was awarded compensation equivalent to 3 months' salary.

- Impact date: 29 June 2012

The Danish Supreme Court has confirmed that the protection against dismissal in the Danish Act on Part-time Employment also applies to situations where a part-time employee refuses to increase working hours, and the employer fails to prove that the increase in working hours is essential for the performance of the business.

The ruling of the Supreme Court indicates that the burden of proof on the employer is relatively onerous.

Employers must, therefore, consider the costs of hiring part-time employees, and consider if such employment could alternatively be fixed-term employment.

Facts

In this case, A was employed part-time (24 hours per week) as a receptionist at the dental clinic (B).

As B had to increase the receptionists' working hours due to a growing demand, B offered a new full-time position to A.However, since A was not interested in a full-time position, A refused the offer.

Days later, on 15 July 2008, A was given notice while being offered the full-time position once more.

Again, A refused the offer and claimed compensation because the dismissal constituted a violation of the Danish Act on Part-time Employees.

The Danish Supreme Court

The Danish Supreme Court stated that the Danish Act on Part-time Employees also applies in situations where a part-time employee is dismissed because he or she refuses to work full time and not only when the refuses to work part-time.

The Supreme Court noted that an employee is not entitled to compensation in the event of a dismissal motivated by the employee's refusal of an adjustment of working hours, if the employers' reason for the adjustment is objective and well-founded on the basis of the performance of the business.

Since the dismissal was a result of A's refusal to work full-time, the Supreme Court stated that the burden of proof was on B to prove that the dismissal was motivated by objective reasons.

The Supreme Court stated that B undoubtedly had to increase the number of receptionist hours, but since B had not proved that it would be significantly onerous for the company simply to hire another part-time receptionist, A was awarded compensation of DKK 53,591 equivalent to 3 months' salary.

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