Employment law – refusal of request for a preliminary ruling

Case no. 259/2014
Order made on 26 October 2015

University College of Northern Denmark
vs.
Kristelig Fagforening (Christian trade union) acting for A

The 2011 Danish Appropriation Act provided for costs savings at the University College of Northern Denmark (UCN). To meet the demand for cost savings, UCN decided to dismiss a number of employees, including A. Before the decision was announced, A informed UCN that she was pregnant. After her dismissal, but before she left UCN, a position for which A was qualified was advertised. No attempts were made to reassign A to this position.

The case concerned whether UCN, by dismissing A, had violated section 9 of the Danish Equal Opportunities Act. One of the issues was whether UCN had been obliged to reassign A to the position advertised between the time of dismissal and the time of resignation.

During the pre-trial stage before the Supreme Court, A requested that questions be referred for a preliminary ruling to the EU Court of Justice regarding the scope of any reassignment obligation according to EU law, including the Equal Treatment Directive.

The Supreme Court held that the Equal Treatment Directive does not contain an obligation for positive action in favour of pregnant employees, including an assessment of whether it is possible to reassign the employee as an alternative to dismissal. However, the issue of reassignment may form part of the assessment of evidence which the national courts must perform to assess whether the prohibition of discrimination against pregnant employees has been breached. Accordingly, the Supreme Court refused the request.