Dismissal of an employee with postpartum depression – is it legal?

On 26 February 2021, the Eastern High Court issued a judgment in which the court found that a company’s dismissal of an employee with postpartum depression was in violation of the Equal Treatment Act.

Shortly after the employee’s birth, she developed postpartum depression, which is why the child’s father had to take over the maternity leave. Her workplace registered that her maternity leave had ended and that she was on sick leave. After six months after the sick leave, the employee was terminated due to too long sick leave.

At the time of termination, the company had attached importance to the employee’s absence from the time when the father took over the maternity leave until the date of termination.

The protection in the Equal Treatment Act

It follows from section 1(2)(2) of the Equal Treatment Act that direct discrimination on the basis of gender exists, including any form of negative discrimination in connection with pregnancy and during the woman’s 14 weeks of absence after the birth. The protection means that a workplace cannot attach importance to sick leave in the first 14 weeks after the birth, even if the woman is not on maternity leave.

Is dismissal of an employee with postpartum depression in violation of the Equal Treatment Act?

The High Court’s conclusion and reasoning

The Eastern High Court concluded that the company could not attach importance to the employee’s sick leave at the time of termination, as the sick leave in the first 14 weeks after the birth was child-related. Therefore, the workplace had to pay the employee compensation corresponding to nine months’ salary.

What does this judgment mean for you as an employer?

The judgment is interesting because the Eastern High Court gives the female employee protection against dismissal during the period when she could have taken maternity leave, i.e. 14 weeks after the birth, because the interruption of the maternity leave was childbirth related. This is a new practice.

This is important to be aware of as an employer, as otherwise you may be required to pay compensation of a large magnitude to the discriminated employee.

Read more about employment law here.