Member Article

It was a violation of the Danish Act on Equal Pay to Men and Women that an employee was not invited to an employee interview and salary negotiations during maternity leave and did not receive a salary raise. This was the ruling of the Danish Supreme Court on 14 May 2012. 

A female employee was not invited to an employee interview and salary negotiations during her maternity leave and consequently she did not - unlike her colleagues - receive a salary raise. Immediately after the employee had  made a request for a salary adjustment with retroactive effect, the employer chose to terminate the employment relationship on the ground of problems of co-operation. 

The issues of the case were whether pursuant to Section 2 of the Danish Act on Equal Pay to Men and Women, the employee was entitled to an adjustment of her salary from the point in time when she returned to work after the end of her maternity leave; whether it was a violation of Section 4 of the Danish Act on Equal Treatment of Men and Women as regards Access to Employment not to invite the employee to an employee interview and salary negotiations during her maternity leave; and whether the termination of the employment relationship was due to the employee's claim for equal pay. 

Regarding the question of salary adjustment, the Supreme Court declared that it is a direct or indirect discrimination in contravention of the provisions of the Danish Act on Equal Pay to Men and Women if a female employee is precluded from a salary increase due to her being on maternity or parental leave. In this connection, it is irrelevant whether the employee's total remuneration is lower than the remunerations of comparable employees of the opposite sex. In view of the fact that no employee interview and salary 

negotiations had been conducted in 2007 when the employee was on maternity leave and that she had not been granted a salary increase with effect from the date on which she returned from her maternity leave, the Supreme Court found that the employee had established facts giving cause to the assumption that the rules on equal pay had been violated. The employer not having proved that the principles of equal treatment had not been violated, the Supreme Court ruled that the employee was entitled to an adjustment of her salary. The amount was estimated in accordance with the employee's claim.

Before the Supreme Court, the employer had recognized that it was a violation of Section 4 of the Danish Act on Equal Treatment of Men and Women that the employee had not been invited to an employee interview and salary negotiations during her maternity leave. In accordance with the ruling of the Danish Maritime and Commercial Court, the Supreme Court set the compensation for this violation at DKK 10,000. 

Finally, the Supreme Court found that in the light of the employee's claim for equal pay by emails forwarded to the employer, it was up to the employer to prove that the termination of the employment was not due to the employee's claim for equal pay. 

Although the termination letter specified that the dismissal was due to problems of co-operation, there were on the evidence no grounds to establish that the employee prior to the dismissal had behaved in a way that could be regarded as problems of co-operation. Accordingly, the Supreme Court found that the employer had not produced evidence showing that the dismissal was not due to the employee's claim for equal pay. The compensation was fixed at an amount equivalent to six months' salary. 

  

The judgment shows that an employee on maternity or parental leave is entitled to rank equally with other employees as regards salary adjustment and to be invited to an employee interview and salary negotiations. This not being the case and the other employees having been granted salary increases, the employer must prove that the rules on equal pay have not been violated. If this burden of proof is not met, the employee will - apart from a claim for compensation for not being invited - also be entitled to an adjustment of the salary. The judgment also shows that the employer carries a severe burden of proof to produce evidence that the dismissal was not due to the employee's claim for equal pay.