Discrimination in dismissals, ending an employment relationship, and lay-offs
The employer may not give notice on, terminate or otherwise discontinue the employment relationship of one or more employees on the basis of gender, gender identity, gender expression, pregnancy, childbirth, parenthood or family obligations. An employee may also not be laid off or transferred to other duties on these grounds.
It is not the purpose of the regulations of Equality Act to restrict the rights of an employer to scale down, expand or otherwise organise the scope of operations in the way that they find appropriate. The Equality Act does also not revoke the regulations in the Employment Contracts Act or the collective agreement regarding protection against dismissal, lay-offs or termination of the employment relationship. When dismissing an employee the employer has to abide by the regulations in the Employment Contracts Act regarding termination of contracts and the order of dismissal of the workforce if this is included in the collective agreement.
Due to the Equality Act, however, the operations cannot be organised according to gender. An employer cannot e.g. in situations regarding dismissals decide who will keep their jobs and who will not solely based on gender. The employee's gender may also not affect, for example, being chosen for lay-offs or the length of lay-offs. The employer also cannot follow any conditions in the collective agreement that may lead to discrimination in individual cases and are therefore in violation of the Equality Act.
For there to be a presumption of discrimination, the employee suspecting discrimination must be able to demonstrate that they and one or more employees of the other gender who did not lose their jobs were comparable alternatives for the remaining positions and that, on the other hand, they would have been more qualified or otherwise more suitable for the position than the employees who were not dismissed. If a presumption of discrimination arises, the employer must be able to demonstrate that the dismissal was due to another acceptable reason, and not the applicant's gender.
In cases of suspected discrimination on the basis of pregnancy or family leave, a presumption of discrimination arises if the employer knows that the employee is pregnant and then terminates the employee's contract or lays off said employee. In this case, the employer must demonstrate that the termination or lay-off was due to other acceptable reasons than the employee's pregnancy.
If the situation has been assessed to be indirect discrimination under section 7 of the Equality Act and the employer demonstrates that the procedure has been aimed at achieving an acceptable objective and the chosen means must be deemed appropriate and necessary in view of this objective, the employer has not violated the prohibition of discrimination.
An example of this could be a situation where a completely female-dominated group of employees is chosen for dismissal, even though the production-related and financial reasons concern the entire company. In this case an assumption may arise that the group that was dismissed was chosen based on gender. The employer then has to provide objective reasons for why it was this group of employees in particular who were chosen to be dismissed.
Requesting an account from the employer
If an employee suspects that they have been discriminated against regarding a dismissal, being laid off or the termination of a contract, they can request a written account from the employer laying out the reasons behind the dismissal or laying-off. The employer has to provide this account without delay. If several employees have been dismissed or laid off, the account has to explain the reasons behind.
