Meeting the reversed burden of proof

When carrying out redundancies, companies should always be mindful of employees enjoying special protection against termination e.g., due to parental leave. But what if the employer determines that the protected employee is the most expendable from an operational perspective?

This was the situation in a recent case processed by the Danish Board of Equal Treatment in which Littler | Denmark represented the educational institution who had made an employee redundant while the employee’s partner was pregnant. The employee was part of a team of 5 people, in which the employer had chosen to terminate the protected employee. As the employee was protected under the Dansh Act on Equal Treatment, it was therefore up to the educational institution to prove, that the pregnancy and upcoming leave did not play into this decision - a burden of proof that is notoriously difficult to meet.

The employee argued that he had never received any negative feedback on his skills or general performance, which was true. The employee’s work had been satisfactory.

However, the Danish Board of Equal Treatment found that the educational institution had met their burden of proof that the pregnancy and upcoming leave did not play a role in the decision.

Littler | Denmark had not advised the organization during the redundancy process but became involved when the employee raised a claim for termination in violation of the Danish Equal Treatment Act.

In the presentation of the case to the Equal Treatment Board, we focused meticulously on emphasizing the difference in the experience and skills of each team member. The employee scored lower than other employees in the team on multiple objective criteria, such as seniority, experience, and further education. These criteria were included in the employee handbook as the selection criteria the organization would apply in the event of redundancies.

The Danish Board of Equal Treatment found that the organization had proved that the termination was not due to the pregnancy and upcoming leave with reference to the comparison of the employee’s competences and experience with the other team members.

Littler notes:

Making a protected employee redundant always carries an economic risk, due to the potential for high compensations and the burden of proof rules. However, it is possible to satisfy the burden of proof if the protected employee is the most expendable employee based on the applied fair selection criteria. In this regard, it can be a very good idea to determine fair selection criteria before initiating a redundancy process and to document that the employees have been evaluated based on the established criteria. We recommend that legal advice is obtained for this process.