Employer discharges heavy burden of proof at Supreme Court

Facts
Decisions
Comment

Under the Act on Equal Treatment of Men and Women, if an employee is dismissed while on pregnancy or maternity leave, the employer will have the onus of proving that the dismissal was not in any way connected to these circumstances. But what does it take for an employer to discharge the reversed burden of proof? The Supreme Court recently decided this issue.

Facts

The case concerned a physical therapist who went on sick leave while she was pregnant. She remained on sick leave until her maternity leave started. Shortly after the employee returned from maternity leave, she was dismissed. The ground for the dismissal was the employer's need to reduce its physiotherapy staff due to a drop in patients, thus ensuring the continued operation of the clinic.

The employee and her trade union believed that the dismissal contravened the Act on Equal Treatment Act of Men and Women and therefore issued proceedings against the employer.

Decisions

After the Eastern High Court found in the employee's favour, the case ended up in the Supreme Court.

The Eastern High Court and the Supreme Court agreed that the reversed burden applied because, based on the evidence presented in the Eastern High Court, it was evident that the employer's decision to dismiss the employee had been made while the employee was on maternity leave.

In the Supreme Court, the employer argued that the employee had been dismissed only after the employer had thoroughly evaluated all of its physical therapists' qualifications in relation to the clinic's future operation, including the tasks and work to be performed going forward.

In this regard, the employee and her trade union argued that:

• of the four physical therapists who could have been selected for dismissal, the dismissed employee had the second-longest service period at the clinic; and
• the employee's work had never given cause for criticism.

On that basis, the employee believed that the employer should have dismissed one of the other physical therapists and that, for this reason, the employer had failed to discharge the burden of proof.

The Supreme Court acknowledged that the employer had had no choice but to reduce its physiotherapy staff because of a decrease in patients.

The Supreme Court also noted that the dismissed employee's personal and professional qualifications could not be faulted. In this regard, the court stated that the fact that the employee had been unable to expand her work experience or complete further training while on maternity leave had to be disregarded.

However, the Supreme Court found that the other at-risk physical therapists were materially distinct from the dismissed employee in terms of work experience and further training. Consequently (and based on the evidence presented), the Supreme Court held that the employer had discharged the burden of proving that the employee's dismissal was neither wholly nor partly based on pregnancy or maternity leave.

Accordingly, the Supreme Court found in the employer's favour.

Comment

This judgment shows that it is possible for employers to discharge the reversed burden of proof under the Act on Equal Treatment of Men and Women if there are clear, operational grounds for the dismissal.

In this case, the employer's decision to dismiss the employee was based on objective criteria and there was no indication that the employer had attached any weight to the employee's pregnancy or maternity leave when making the dismissal decision.

For further information on this topic please contact Yvonne Frederiksen at Norrbom Vinding by telephone (+43 35 25 3940) or email (yf@norrbomvinding.com). The Norrbom Vinding website can be accessed at norrbomvinding.com.