Unjustified to terminate the best qualified employee regardless of colleague’s pregnancy

A company had experienced a drop in sales in the period 2009-2011. The company did therefore no longer need two engineers with the same certification, and it was decided to terminate one of them in November 2011.

The affected employee had been with the company for 15 years and was the best qualified of the two employees. Prior to dismissing the engineer, the company had offered him to retire and later be assigned work as a contractor. The engineer had declined the offer, and he was therefore terminated.

Originally, it had been the plan to dismiss the less qualified engineer, but when the company presented her with the dismissal, she revealed that she was pregnant. The company was therefore convinced that they could not dismiss her because of her pregnancy.

During the proceedings, both the affected employee and his pregnant colleague explained that there had not been any drop in sales in their department and held therefore that the dismissal was unjustified.

Seniority before pregnancy

The High Court found reason to believe that there had been a drop in the flow of new orders and that the company’s drop in sales could justify the dismissal of an employee.

The Court did not find that the dismissed engineer had been exposed to discriminatory treatment on the basis of his age, because the company originally had intended to dismiss his colleague. He did therefore not receive any compensation for possible age discrimination under the Danish Act on Discrimination.

However, it had been proven that the dismissed engineer was the best qualified of the two engineers. The dismissal had therefore not been justified and the dismissed engineer was entitled to compensation for unjustified termination corresponding to three months’ salary.

IUNO’s opinion

The case illustrates that the protection of pregnant employees is not unconditional. If the company is facing a reduction in staff and the choice lies between a pregnant employee and better qualified employee, the company may under some circumstances dismiss the pregnant employee without necessarily thereby exercising discriminatory treatment.

Usually, it is the management’s discretion to decide who is the better qualified when it comes to a decision to reductions of the workforce. The case is therefore surprising because the High Court forces the company to dismiss a specific person, namely the pregnant one. This part of the ruling shall probably be viewed in the light of the fact that both employees potentially were protected against discrimination and that the requirements to prove that the termination was justified therefore were generally more rigorous.

IUNO recommends that companies that face a reduction in workforce or restructurings have the list of employees and selection criteria checked thoroughly in order to minimize the risk of discrimination and cases of unjust dismissal.

[The Danish Eastern High Court’s judgment of 20 March 2017 in case B-1281-13]