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23 October 2019
The Western High Court recently found that the dismissal of an employee who had called in sick on the first day after a period of childbirth-related leave and holiday did not contravene the Act on the Equal Treatment of Men and Women.
Employers cannot dismiss employees wholly or partly on the grounds of childbirth-related leave. This would contravene the Act on the Equal Treatment of Men and Women. The burden of proof is reversed if an employee is dismissed during childbirth-related leave. Otherwise, the burden of proof is shared between employees and employers. In the case at hand, the Western High Court had to decide whether a production worker who was dismissed shortly after returning from childbirth-related leave had discharged the burden of proof by establishing facts indicating that her childbirth-related leave had been a factor in her dismissal.
The case involved a production worker at a company that sold products to restaurants and caterers. The plaintiff had been on childbirth-related leave and then took holiday in continuation of the leave. On the first day of work after her holiday, she called in sick. Two days later the plaintiff was dismissed by her employer, citing a drop in orders. The plaintiff had been selected for dismissal because she had had a considerably higher sickness absence rate (not pregnancy related) than other employees over an extended period.
The plaintiff and her trade union believed that the close temporal connection between her childbirth-related leave and dismissal indicated that the termination of her employment had been based on said leave. In addition, the plaintiff argued that the company had not proved that it had experienced a drop in orders due to her absence. The case was brought before the courts.
Both the district court and the Western High Court found in favour of the company, as the plaintiff had failed to establish facts indicating that her childbirth-related leave had been a factor in the decision to terminate her employment.
By contrast, the company had shown that the inflow of orders had dropped significantly around the time of the plaintiff's dismissal and it had therefore been necessary to lay off staff. The court took into account that the company had based the dismissal decision on objective criteria such as qualifications and attendance. Accordingly, it was found that the dismissal had not contravened the Act on the Equal Treatment of Men and Women.
The judgment exemplifies that if an employee's dismissal has a close temporal connection with their return from childbirth-related leave, this does not automatically raise a presumption of discrimination.
For further information on this topic please contact Sara Baldus at Norrbom Vinding by telephone (+43 35 25 3940) or email (firstname.lastname@example.org). The Norrbom Vinding website can be accessed at norrbomvinding.com.
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