The Danish Western High Court: A change in an employee's working schedule during the maternity leave violated the provisions in the Danish Act on Equal Treatment

By Søren Narv Pedersen, Mia Boesen, Pia Skovgaard Hansen

01-2020

The employee was successful in her claim of 12 months' salary in accordance with the Danish Act on Equal Treatment, because her working hours and position in the company was changed significantly during her maternity leave. The result was that the changes were considered as a dismissal with an offer to be employed on the new terms. 

The circumstances of the case:

The Employee, N, was employed in the company, DT on 17 May 2011. N was responsible for the hardware department. In 2016, N went on maternity leave. During N's maternity leave, N was informed that her working hours would change and that some evenings she would be required to close the shop. Before N went on maternity leave, she was never required to close the shop in the evenings because she had to pick up her child from daycare. The number of weekly working hours, however, remained the same. 

N would not accept the changes in her employment, as she considered those changes as being significant and she considered herself as being dismissed with her notice of termination.  

In this connection and in addition to her notice of termination, N raised a compensation claim of 12 months' salary in according to the provisions in the Danish Act on Equal Treatment for dismissal due to her maternity leave.

On this basis, the Danish High Western Court had to decide 1) whether the changes in N's employment terms could be considered as significant changes to the employment  that meant that N could consider herself as being dismissed and 2) in case the changes were considered as significant changes, whether these was reasoned in N's maternity leave.

Comments from the Danish High Western Court:

First of all, the Danish High Western Court remarked that the changes to N's working schedule and also the changes to N's position were considered as significant changes and were therefore also considered as a dismissal of N accompanied by an offer to be employed on the new terms. This was e.g. due by the fact that the changes had a big impact on N's personal life, as she would not be able to pick up her children from daycare. It could not lead to another assessment notwithstanding that DT offered N her former position.

Because N was notified about the changes during her maternity leave, DT had to prove, that the changes was not reasoned in N's absence due to her maternity leave. The Danish High Western Court decided that DT was not able to lift the burden of proof and N was thus entitled to compensation pursuant to the Danish Act on Equal Treatment. Because of N's seniority and the circumstances of the case, the compensation was estimated to 12 months' salary. 

Bird & Bird's comments

The judgment confirms the current conception of law, by which employers are subject to a very heavy burden of proof when arguing that significant changes – and therefore a dismissal of an employee on maternity leave – was not substantiated in the fact that the employee was absent due to her maternity leave. 

Further, the judgment confirms that a change of the work schedule can be considered as a significant change, especially if the change entails challenges for the employee's family as in this case. 
 
Finally, Bird & Bird remarks that when the changes have been notified, such notification cannot be withdrawn. It is therefore important that the employer considers the consequences of such notice carefully before notifying such changes.