Eastern High Court: Termination During Maternity Leave Did Not Violate the Danish Equal Treatment Act

On 10 September 2026, the Eastern High Court found that an employer had met the reversed burden of proof under the Danish Equal Treatment Act and demonstrated that a termination of an employee was not based, either wholly or in part, on the employee’s pregnancy or maternity leave.

The case concerned termination during maternity leave

The case involved an employee who had worked as an SEO specialist at a digital marketing company since 2020. The employee went on maternity leave in January 2023 and was terminated in July of the same year, with the company citing restructuring and a decline in clients and projects in the SEO department as the reasons for the termination.

The employee argued that the termination violated the Danish Equal Treatment Act. Among other things, she argued that she had longer seniority and more experience than the other employees in the department, and that her clients and projects had been distributed among other employees during her maternity leave.

The employer, on the other hand, argued that, due to an economic downturn and a decrease in SEO-related work, the company was forced to reduce its workforce. In connection with the termination, the company assessed the relevant employees’ competencies and based on this assessment, selected the employee for termination.

The employer had met the reversed burden of proof

It was undisputed that according to the Danish Equal Treatment Act, the burden of proof rested with the employer to demonstrate that the termination was not based on the employee’s maternity leave.

The High Court started with reference to the general employment law principle that the reasonableness of a termination should be assessed based on the circumstances at the time of termination. It noted that this principle also applies when assessing a termination under the Danish Equal Treatment Act.

After reviewing the evidence, the High Court found that the company had experienced a decline in earnings over several years and that it had therefore been necessary to implement cost-cutting measures by reducing the workforce.

The Court of Appeals also concurred with the District Court’s assessment that the employee had been selected for termination following a specific and objective evaluation of her competencies and those of the other relevant employees. Among other things, the evaluation considered the current and expected further decline in SEO-related tasks.

In this regard, the District Court had emphasized that the evaluation of the employee had been conducted before the employer became aware of her pregnancy, while the evaluations of the other relevant employees had been conducted five months prior to the termination.

On that basis, the court found that the employer had demonstrated that the termination was not based, either wholly or in part, on the employee’s pregnancy or maternity leave. The High Court therefore upheld the District Court’s acquittal.

Littler notes

The ruling illustrates that employees enjoy special protection against termination due to pregnancy and maternity leave. However, this protection does not preclude an employee from being terminated during maternity leave. In such cases, however, the employer bears the burden of proving that the decision is not based, either wholly or in part, on the pregnancy or maternity leave.

The case also demonstrates that thorough documentation can be crucial to the employer’s ability to meet the reversed burden of proof. In this case, the employer documented both the company’s need to reduce its workforce and the criteria used to select the employee in question.

The ruling therefore underscores the importance of documenting both the basis for a workforce reduction and the selection of the affected employees. In this regard, it was considered significant that the employee’s performance evaluation had been conducted before the employer became aware of her pregnancy.

At Littler, we regularly advise companies on pregnancy and maternity/paternity leave. In addition, we advise on the handling of disputes regarding discrimination and equal treatment.