Discrimination of pregnant employee could be brought before the Board of Equal Treatment
In its decision of 16 December 2022, the Danish Board of Equal Treatment found that an agreed arbitration clause did not prevent a pregnant employee from bringing a case on discrimination based on gender before the Board.
In respect of the substantive issue in dispute in the case, the Board of Equal Treatment found that the pregnant employee had been given notice of termination contrary to the Danish Equal Treatment Act (ligebehandlingsloven), and consequently, the employee was awarded compensation corresponding to six months’ salary.
The case in brief
The employee was hired as chiropractor on 20 July 2020. In the employment contract, it was agreed, among other things, that any disagreements were to be resolved by way of arbitration.
“15.2 Where the parties fail to reach agreement, such disagreement must be settled with final effect by way of arbitration in Copenhagen. Any disagreement cannot be brought before the courts.”
On 6 November 2020, the employee informed the enterprise that she was pregnant. A short time after this, on 17 November 2020, the enterprise hired a new chiropractor to replace a chiropractor who was leaving that same month. The new chiropractor started working in January 2021.
On 11 February 2021, the pregnant employee was given notice of termination with reference to the corona situation and the insufficient number of new patients and reduced client base. In was undisputed that the parties had the day before talked about the expected length of the employee’s maternity leave.
The parties' positions
The employee was of the opinion that the termination was actually based on her pregnancy. She referred, among other things, to the fact that the performance reports produced showed that her revenues did not decrease until the enterprise hired the new chiropractor, and that at the time when the enterprise hired the new chiropractor, the workload was inadequate to occupy them both.
The enterprise, however, stated that the employee was given notice of termination because, when it came down to her and the new employee, she was the one whom the enterprise could most easily do without. The enterprise for instance referred to the fact that the new employee differed significantly from the pregnant employee in terms of experience, skills and further training.
Decision of the Board
At its own initiative, the Board started by stating that an arbitration clause agreed between the parties could not lead to dismissal of the case as the enterprise had not entered a plea to that effect.
In respect of the termination, it was up to the enterprise to prove that the termination was not caused by the employee’s pregnancy, as the termination was effected during the pregnancy.
With reference to the fact that the termination took place (i) on the day after the employee and the enterprise had talked about the length of the employee’s maternity leave, and (ii) a short while before the employee started her pregnancy leave and that (iii) the chiropractor whom the enterprise chose to keep on had only been employed for one month and, compared with the pregnant employee, only had two years’ relevant additional experience, the Board found that the enterprise was unable to satisfy the reversed burden of proof.
Consequently, the employee was awarded compensation corresponding to six months’ salary.
Comments by Bech-Bruun
A party may forfeit its right to enforce an arbitration clause if the party in question does not take any action in respect thereof. Accordingly, it is important that an enterprise, in a situation where an arbitration clause has been agreed, enters a plea for dismissal of the case.
For more information
If you have any questions, please do not hesitate to contact Lise Lauridsen or Sandro Ratkovic. You may also get in touch with your usual Bech-Bruun contact.