Can an employer dismiss an employee on maternity leave?

Decision in a Case Concerning Dismissal of Maternity Leave

On 2 September 2020, the Supreme Court ruled
https://domstol.dk/hoejesteret/aktuelt/2020/8/beslutning-om-afskedigelse-under-barselsorlov/
on whether a dismissal of an employee on maternity leave was in violation of the Equal Treatment Act. The employee on maternity leave was dismissed shortly after she returned to work. It was then claimed that it was in violation of the Equal Treatment Act.

But can an employer dismiss an employee on maternity leave?
Read more about the legislation in this area below.

The Protection of Pregnant Women and Postnatal Women in the Equal Treatment Act

According to Section 9 of the Equal Treatment Act, an employer may not dismiss an employee because he or she has been absent in connection with pregnancy or because the employer has made a claim for the exercise of the right to absence under the Maternity Act. An employer may also not treat an employee less favourably because of their pregnancy, maternity, or adoption. The protection starts from conception until the leave is taken. During this period, the burden of proof is reversed. This means that if an employee is dismissed during this period, it is the employer who must prove that the dismissal has nothing to do with the maternity leave or pregnancy. The protection also applies if a dismissal occurs immediately after an employee’s return to the workplace, provided the decision was made between conception and the end of the leave.

The Supreme Court’s Decision and Reasoning

The Supreme Court established that the decision to dismiss had been made during the maternity leave, even though the employee on maternity leave was not terminated until after the maternity leave. For this reason, the burden of proof was reversed, and the employer had to bear it.

What Does the Judgment Show?

The judgment shows that even though there is a reversed burden of proof under the Equal Treatment Act, if an employer dismisses a pregnant or postpartum woman, it may still be legal to dismiss the employee if the dismissal is objectively justified and the employer can prove this. If an employer intends to dismiss a pregnant woman or an employee on maternity leave, it can be advantageous to prepare a dismissal justification in advance to provide evidence for the dismissal.

Read more about employment law here.