The case concerned the employee A who was a trainee at a shop in the period from April 2007 to April 2009 during which A had served her apprenticeship as sales assistant. On 23 April 2009, A was appointed sales assistant in the shop subject to a fixed-term contract until 31 July 2009.
At the end of June 2009, the trainee C, who had finished her apprenticeship with the shop in August 2009, was dismissed summarily.
On 1 July 2009, the employee A told the shop manager B that she was pregnant. On 1 August 2009, A was offered an extension of her fixed-term contract to expire on 30 November 2009 at which time she was to go on maternity leave.
In mid-August 2009, the shop employed a new sales assistant D with effect from 1 September 2009.
There was only room for one sales assistant and two trainees in addition to the shop manager, so when A learned that D was not employed to fill the temporary vacancy while A was to be on maternity leave, and B claimed that A's maternity leave was to be paid by her unemployment fund, A contacted her union.
A brought legal action against the shop, claiming payment of compensation for discrimination contrary to the Danish Non-Discrimination Act. A claimed that the real cause of the fixed-term appointment was that her employer was aware of her pregnancy and that the appointment was therefore comparable to a dismissal.
The employer contested the claim and stated as reason for the fixed-term appointment that specific circumstances not attributable to the employer made it necessary to employ A under a fixed-term contract until November 2009.
As opposed to the district court, the Western High Court found for A, attaching importance to the fact that the employer had not proven that there had been no discrimination. The compensation was fixed at DKK 100,000 equal to approx. six months' pay.
Conclusion
The decision shows that the Danish Non-Discrimination Act cannot be circumvented by employing a pregnant employee under a fixed-term contract as this is comparable to dismissal. This also means that in such a situation, it is for the employer to prove non-discrimination.
[Decision rendered by the Danish Western High Court on 08 July 2011 in case no. B-2915-10]