Termination of a pregnant employee during bankruptcy did not violate the Equal Treatment Act

In a ruling from March 2026, the Western High Court ruled on whether the dismissal of a pregnant dental hygienist in connection with her employer’s bankruptcy violated the Danish Equal Treatment Act. The court ruled in favor of the employer and determined that the termination was justified by the bankruptcy and was not related to the employee’s pregnancy or to a subsequent transfer of the business.

The employee had been employed as a dental hygienist since 2017. On 9 December 2021, her employer entered bankruptcy proceedings. On 22 December 2021, while the employee was pregnant, the bankruptcy trustee decided not to assume the employment relationships. Consequently, all employees were dismissed and placed on unpaid leave. Subsequently, on 19 January 2022, an agreement was concluded to transfer the dental clinic to a new company, with an effective transfer date of 1 February 2022.

The employee argued that her dismissal should be regarded as part of the business transfer rather than the bankruptcy. As a pregnant employee, she claimed that she was therefore entitled to compensation under section 16 (2) of the Equal Treatment Act. Among other arguments, she asserted that the new owner did not wish to take over the employees, and that the dismissal was therefore not genuinely based on the bankruptcy.

High Court: The assessment must be based on the circumstances at the time of termination 

The Western High Court ruled that the assessment must be based on the circumstances existing at the time of termination. The decisive question was whether, at that time, the dismissal was reasonably justified by the bankruptcy and not by the employee’s pregnancy or a transfer of the business.

The High Court emphasized that all employees were dismissed simultaneously on 22 December 2021, and that the decision was made within the statutory 14‑day deadline under section 63 (2) of the Bankruptcy Act, during which the trustee must decide whether to assume employment relationships. The court further emphasized that the employees were placed on unpaid leave due to the lack of funds in the bankruptcy estate.

At the time of termination, the business was no longer in operation, and negotiations concerning a possible transfer had not progressed to a stage where the trustee had any certainty that an agreement would be concluded. The mere fact that an offer for the business existed at that time did not alter the assessment.

On this basis, the High Court concluded that the dismissal was justified by the bankruptcy and that there were no concrete grounds for finding that the termination was motivated by the employee’s pregnancy or by a subsequent transfer of the business. Accordingly, the employer was acquitted.

Littler comments 

The judgment confirms that the reversed burden of proof under the Equal Treatment Act also applies in cases involving terminations effected in connection with bankruptcy. However, it also demonstrates that this burden can be discharged where a termination forms part of a genuine liquidation process in which all employees are dismissed.

The ruling underscores that the circumstances at the time of termination are decisive, and that a later transfer of the business does not, in itself, change the legal assessment of a termination carried out during bankruptcy proceedings.

Disclaimer: This article is not and cannot replace legal advice.