The Supreme Court: Dismissal as a result of planned fertility treatment constituted discrimination in violation of section 4 of the Equal Treatment Act
On 15 April 2025, the Supreme Court ruled in a case concerning the dismissal of a female employee who was about to start fertility treatment. Shortly before her holiday, the employee informed her immediate manager and her team that she was to have egg retrieval as part of fertility treatment. When she returned from her holiday, she was dismissed. At the time of dismissal, the female employee had not yet started the actual treatment, but she had a confirmed appointment at the fertility clinic and a plan for the upcoming course of treatment.
The question before the Supreme Court was whether the dismissal was in violation of section 9 of the Equal Treatment Act, which protects individuals against dismissal due to pregnancy and attempts to conceive through artificial insemination, or section 4 of the Equal Treatment Act, which prohibits discrimination on the basis of gender in a broader sense.
According to two Supreme Court judgments dated 12 December 2002 (UfR 2003.603) and 29 March 2012 (UfR 2012.2133), section 9 of the Equal Treatment Act must be interpreted to include dismissals based on the employee’s attempt to conceive through artificial insemination. The latter judgment establishes that, in order for an employee to be covered by the protection under section 9 of the Equal Treatment Act, an actual treatment must have commenced which has created a genuine possibility of pregnancy.
Any employer who employs both men and women shall treat them equally with regard to terms and conditions of employment. This also applies to dismissal.
With reference to these decisions, the majority of the Supreme Court found that the termination was not in violation of section 9 of the Equal Treatment Act, as the treatment had not commenced prior to the termination, and thus no real possibility of pregnancy had arisen at the time of termination.
On the other hand, the majority of the Supreme Court found that the employee had demonstrated facts that gave reason to assume that the dismissal was based on her gender, more specifically her announced fertility treatment, and that the employer had failed to prove that the principle of equal treatment had not been violated, cf. section 16a of the Equal Treatment Act. The dismissal was therefore in violation of section 4 of the Equal Treatment Act.
An employer may not dismiss an employee or subject the employee to any other less favourable treatment because the employee has asserted a claim to exercise the right to leave, has been absent pursuant to Sections 6–14a, 23b, or 23c of the Maternity Leave Act, has made a request for changes under Section 8a(2) of this Act, or otherwise due to pregnancy, maternity leave, or adoption.
Because of this, the employee was awarded compensation of DKK 150,000, corresponding to six months’ salary for termination in violation of section 4 of the Equal Treatment Act, cf. section 14(1). In determining the compensation, the Supreme Court emphasised the nature of the violation and the level of compensation normally applied in the event of a violation of section 9. It was explicitly stated that it was of no significance to the amount of compensation whether the termination took place before or after the treatment had begun.
A minority in the Supreme Court found that the specific circumstances of the case – including the presented treatment plan and the upcoming medical treatment – had to be equated with initiated treatment, and that the employee was therefore already covered by the protection in section 9 of the Equal Treatment Act. The minority agreed with the majority as regards the calculation of compensation.
The judgment demonstrates that, in cases concerning dismissal in violation of section 4 of the Equal Treatment Act, cf. section 14(1), the determination of compensation must be based on the level of compensation applied in cases of dismissal contrary to section 16(2) and (3), cf. section 9, of the Act. It is therefore immaterial to the level of compensation whether the employee is dismissed before or after the commencement of fertility treatment.
It is recommended that companies document the reason for dismissals and seek legal advice if there is a presumption that the employee may be covered by the Equal Treatment Act or other sets of rules that provide special protection against dismissals.
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