The case (BS-28980/2024-HJR) concerned a female employee who was terminated shortly after informing her employer about a planned fertility treatment. The employee had become a permanent employee of the company on May 1, 2020, and on June 23, 2020, she informed her manager and her team that she was to have egg retrieval as part of a fertility treatment. On June 26, 2020, she went on vacation - and upon her return on July 20, 2020, she was terminated without written justification.
The case before the Supreme Court concerned whether the employee was entitled to compensation under the Equal Treatment Act, and if so, the amount of compensation.
Treatment had not begun - but the Equal Treatment Act applied
The Supreme Court ruled that section 9 of the Equal Treatment Act, which protects against dismissal due to pregnancy or ongoing fertility treatment, did not apply, as the employee did not have her first treatment appointment at the fertility clinic until after the dismissal.
Instead, section 4 of the Equal Treatment Act – which prohibits discrimination on the grounds of gender – was applied. The Supreme Court emphasized that the employee’s disclosure of the upcoming treatment occurred immediately prior to the dismissal, and that the employer had not discharged the burden of proof to show that the dismissal was not based on gender-related grounds.
Compensation equivalent to six months' salary
The Supreme Court found that the dismissal constituted a violation of section 4 of the Equal Treatment Act and granted the employee compensation of DKK 150,000, equivalent to six months' salary. The court stated that the compensation should be determined without regard to the nature of the violation, and that the level of compensation should therefore reflect normal practice under section 9.
Littler notes
The judgment emphasizes employers' duty to act with care in situations where an employee has disclosed fertility treatment. Even in cases where actual treatment has not yet begun, a dismissal may violate the Equal Treatment Act if the circumstances point towards gender discrimination.
The Supreme Court's judgment changes the High Court's previous result and clarifies the boundaries between section 4 and 9 of the Equal Treatment Act.
