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Ministry for Employment

Translation

Consolidation Act No. 711 of 20 August 2002

Consolidation Act on Equal Treatment of Men and Women as

regards Access to Employment and Maternity Leave, etc.[1]

This is an Act to consolidate the provisions of Act on Equal Treatment of Men and Women as regards Access to Employment and Maternity Leave etc., cf. Consolidation Act No. 895 of 10 October 2001 with the amendments following from Section 1 of Act No. 141 of 25 March 2002.

Part 1

1. - (1) For the purpose of this Act equal treatment of men and women means that no discrimination may take place on the ground of gender. This applies to both direct discrimination and indirect discrimination, in particular by reference to pregnancy or to marital or family status.

(2) Indirect discrimination exists where a provision, a criterion or a practise which is seemingly neutral places a substantially bigger number of persons of one gender in a less favourable position unless this provision, criterion or practise is expedient and necessary or can be justified by objective non-gender related factors.

(3) The Act shall be without prejudice to provisions on protection of women, especially in connection with pregnancy or maternity, cf. part 3 of the Act.

(4) The provisions of this Act shall not apply to the extent that a similar obligation to equal treatment follows from a collective agreement.

Part 2

Equal treatment of men and women

2. Any employer shall observe the principle of equal treatment of men and women in connection with recruitment, transfers and promotions.

3. - (1) Any employer who employs men and women shall treat them equally as regards access to vocational guidance, vocational training, vocational continued training and retraining.

(2) The obligation to observe the principle of equal treatment shall also apply to any person who undertakes guidance and training activities as mentioned in subsection (1).

4. Any employer who employs men and women shall treat them equally as regards working conditions. This shall also apply in connection with dismissal.

5. - (1) The obligation to observe the principle of equal treatment shall also apply to any person who lays down provisions and makes decisions concerning the access to exercise activities on the basis of self-employment. This shall also apply to the establishment, organisation or extension of an enterprise and the taking-up or extension of any other form of self-employment, including the financing hereof.

(2) The obligation to observe the principle of equal treatment shall also apply to any person who lays down provisions and makes decisions concerning vocational training etc. and concerning the terms governing the performance of such activities.

6. No advertisement may state that persons of a specific gender are wanted or preferred in connection with recruitment or vocational training etc.

Part 3

Pregnancy, maternity and adoption

7. - (1) A female employee shall be entitled to absence from work due to pregnancy and maternity from the date estimated to be 4 weeks before the birth. After the birth the female employee shall be entitled to absence from work for a total period of 14 days. After this period the female employee is entitled to a further 12 weeks of absence from work. The father of the child shall be entitled to absence for up to 2 weeks after the birth or reception of the child in the home or - as agreed with the employer - within the first 14 weeks after the birth. Adoptive parents are entitled to absence from work in pursuance of section 14 of the Act on benefits in the event of sickness or childbirth.

(2) After the 14th week after the birth each of the parents shall be entitled to absence from work for a period of 32 weeks. Alternatively, the parents have the right to chose 40 weeks of absence, cf also section 13 (4) and section 14 (5) in the Act on benefits in the event of sickness or childbirth. Employees are also entitled to chose 46 weeks of absence, cf also section 14 (5) of the Act on benefits in the event of sickness or childbirth. The father may use his right to absence in accordance with paragraphs 1-3 within the first 14 weeks after the birth.

(3) Employees are entitled to postpone absence from work for a minimum of 8 weeks and a maximum of 13 weeks pursuant to  (2) paragraph 1. The right to postpone the period of absence may be used by either parent. The postponed absence shall - when it is used - be held as a continuos period of time. The postponed right to absence shall be used before the child reaches the age of 9.

(4) In agreement with the employer, the employee may postpone up to 32 weeks of the right to absence pursuant to  (2) paragraph 1. The postponed absence shall be used before the child reaches the age of 9. If the employment relationship is terminated before the postponed right to absence has been used, the right to absence is conditional upon an agreement with the new employer concerning the postponed right to absence.

(5) If the child is hospitalised, the right to absence under subsections (1) and (2) may be postponed, cf. section 15 of the Act on benefits in the event of sickness and childbirth.

(6) Furthermore, an employee has the right to absence from work in connection with pregnancy, maternity and adoption in periods where the employee is entitled to daily cash benefits according to Part 7 of the Act on daily cash benefits in connection with sickness or birth.

(7) A female employee has the right to absence from work in connection with pregnancy examinations when these are to take place during working hours

7a. - Periods during which the right to daily cash benefits is reduced or lapses under section 16a subsection (1), (2) and (4) of the Act on daily cash benefits during sickness or birth because the employee has resumed work, are included in the calculation of the periods where the employee has the right to absence according to section 7.

(2) The period of time during which the right to daily cash benefits is prolonged under section 13 subsection (3) of the Act on daily cash benefits in connection with sickness or birth because the employee has resumed work, shall not be included in the calculation of the periods during which the employee has a right to absence according to section 7.

8. The time during which the employee has been absent under section 7 shall be included in connection with the calculation of seniority in the employment relationship. This provision shall not apply to pension matters.

9. An employer may not dismiss an employee for having put forward a claim to use the right to absence or for having been absent under section 7 or for any other reason related to pregnancy, maternity or adoption.

10. - (1) A female employee shall with a notice of 3 months inform her employer of the expected time of birth and of whether she intends to use her right to absence after the birth, cf section 7  (1) paragraph 1. A female employee who uses her right to absence under section 7 (1) paragraph 3 shall within 8 weeks after the birth inform her employer of the date on which she intends to resume work.

(2) A male employee who uses his right to absence in connection with the birth or reception of the child in the home cf section 7 (1) paragraph 4 shall with a notice of 4 weeks inform his employer of the date on which he expects the absence to start and of the duration of the absence.

(3) An employee who wishes to use his/her right to absence under section 7 (2) shall not later than 8 weeks after the birth inform the employer of the date of the start of the absence and its duration. Furthermore, the employee shall inform the employer of whether he/she wishes to use the right to postpone absence according to section 7 (3).

(4) If the right to absence after the 14th week after the birth is used so that the absence of the employee falls in several periods, the employee shall in connection with the notice to the employer under section (3) paragraph 1 inform the employer of the date of commencement and the duration of later periods of absence.

(5) The employee shall be entitled to use the right to absence if new notice is given before the expiry of the notice under subsections  (1), (2), (3) and (4). The employee is entitled to change the use of the right to absence in the event of circumstances that make it unreasonable to uphold the right to absence as given in the notice.

(6) In connection with absence by virtue of section 7 (6) prospective adoptive parents shall, if the duration and time of the leave has not been fixed when the child is received, observe the time limits laid down in subsections (1) to (4).

(7) An employee who uses the right to absence under section 7 (6) because the child is hospitalised within the first 46 weeks after the birth or reception in the home shall, without undue delay, inform her employer about the hospitalisation. At the same time, the male employee shall inform his employer hereof. The parents shall, without undue delay, inform their employers about the date on which the child is received in the home after the hospitalisation. If the child is received before notice has been given under subsections (1) to (4), the time limits shall be extended with the period during which the child has been hospitalised. If they fail to do so, the notices given shall lapse and new notices shall be given within 2 weeks after the reception.

(8) An employee who uses the right to absence under section 7 (6) because the employee is subrogated to the other parent’s entitlement to daily cash benefits shall, without undue delay, inform the employer hereof and of the duration of the absence.

(9) An employee who uses the right to absence under section 7 (3) shall with a notice of 16 weeks inform the employer of the date of the start of the absence and the duration hereof. If the employee fails to give notice in due time of absence under paragraph 1, the right to absence cannot be used until the expiry of the given notice.

Part 4

Void agreements, etc.

11. - (1) Provisions laid down in agreements and in regulations, etc. of enterprises which are in contravention of sections 2 to 5 shall be void. This shall also apply to rules, etc. governing independent professions.

(2) Provisions in agreements and in regulations etc. of enterprises which concern more than one employer shall also be void if they allow discrimination on the ground of gender in the fields mentioned in sections 2 to 4. This shall also apply to rules, etc. governing independent professions.

12. No deviation from the provisions laid down in this Act may take place to the detriment of the employee.

Part 5

Exemptions

13. - (1) Where the gender of a person is of importance in connection with the performance of certain types of professional activities and participation in education, the minister under whose competence the activity falls may grant exemptions from the provisions laid down in sections 2 to 6.

(2) The minister under whose competence an activity falls may permit measures deviating from sections 2 to 6 to promote equal opportunities for men and women, particularly by remedying actual inequalities which affect the access to employment, education, etc.

(3) The Minister for Gender Equality may under the Act on Equal Opportunities for Men and Women lay down more detailed rules concerning the cases in which measures may implemented to promote equal opportunities without permission under subsection (2).

(4) The deviations mentioned in subsections (1) and (2) shall be reported to the Minister for Gender Equality by the competent minister before 1 November at least every second year, for the first time in 2002.

Part 6

Compensation, assessment of evidence, etc.

14. Persons whose rights have been violated by non-compliance with sections 2 to 5 may be awarded compensation.

15. - (1) If an employee is dismissed for having put forward a claim for equal treatment under sections 2 to 4, the employer shall pay compensation.

(2) The amount of the compensation under subsection (1) above - which may not exceed 39 weeks' pay - shall be fixed taking into account the seniority of the employee and other circumstances of the case.

(3) Subsections (1) and (2) shall be correspondingly applicable where the obligation to observe the principle of equal treatment follows from a collective agreement, but where the collective agreement does not give the person concerned a right to compensation in the case of dismissal which is not reasonably justified by the conditions of the employee or the undertaking. The claim shall be dealt with under the procedures set up for settlement of industrial disputes.

16. - (1) If an employee is dismissed in contravention of section 9, the dismissal shall be set aside if a claim to this effect is made, unless it is - in special cases and after a balancing of the parties' interests - considered unreasonable to claim the employment relationship maintained or restored.

(2) If an employee is dismissed in contravention of section 9 and the dismissal is not set aside, the employer shall pay compensation.

(3) The amount of the compensation - which may not exceed 78 weeks' pay - shall be fixed with due regard to the seniority of the employee and other circumstances of the case.

(4) If the dismissal takes place in connection with absence under section 7 subsections (1), (2) and (3) and (5), (6) and (7) and periods of notice under section 10 subsection 9, it shall be incumbent on the employer to prove that dismissal was not based on these grounds.

(5) If an employee is dismissed during the periods mentioned in section 7, the employee shall have the right to a document in writing giving adequate particulars of the ground for the dismissal.

16a - Where a person who finds that he/she has been discriminated, cf. sections 2-5, 9 and 15 (1), proves that actual circumstances exist which give reason to presume that direct or indirect discrimination may have taken place, it shall be incumbent upon the other party to prove that the principle of equal equality has not been violated.

Part 7

Miscellaneous provisions

17. The Minister for Employment Labour shall lay down special rules on maternity leave, etc. of seafarers.

18. (Abolished)

Part 8

Penal sanctions

19. - (1) Violation of sections 2 to 6 shall be punishable by a fine.

(2) Penal sanctions may be imposed upon companies etc. (legal persons) under the rules laid down in Part 5 of the Penal Code.

Part 9

Commencement

20. - (1) This Act shall come into operation on 1 May 1989.

(2) The Act on Equal Treatment of Men and Women as regards Employment, etc., cf. Consolidation Act. No. 572 of 28 August 1986 and the Act on Maternity leave, etc., cf. Consolidation Act. No. 101 of 6 March 1987 are hereby abolished.

21. This Act shall not extend to the Faroe Islands and to Greenland.

Act No. 268 of 2 May 1990 amending the Act on Equal Treatment of Men and Women as regards Employment and Maternity Leave etc. contains the following provision on commencement:

Section 2

(1) This Act shall come into operation the day after its publication in the Danish Law Gazette and shall be operative from 2 April 1990.

(2) However, section 1, par. 5 shall come into operation at a date to be fixed by the Minister for Employment Labour[2].

___________________

Act No. 412 of 1 June 1994 amending the Act on Equal Treatment of Men and Women as regards Access to Employment and Maternity Leave etc. contains the following provision on commencement:

Section 2

This Act shall come into operation on 1 October 1994

Act No. 416 of 1 June 1994 amending the Act on Equal Treatment of Men and Women as regards Access to Employment and Maternity Leave etc.[3] contains the following provision on commencement:

Section 2

This Act shall come into operation on 1 July 1994.

Act No. 1111 of 29 December 1997 amending the Act on daily cash benefits during sickness or birth and the Act on Equal Treatment of Men and Women as regards Access to Employment and Maternity Leave etc.[4] includes the following provision on commencement:

Section 3

This Act shall come into operation on 1 April 1998 and shall be applicable to cases where the birth or the reception of the child has taken place on 15 October 1997 or later.

Act. No. 388 of 30 May 2000 Act on Equal Opportunities for Men and Women[5] contains the following provision on commencement:

Section 24

This Act shall come into operation on 1 June 2000.

Act No. 440 of 7 June 2001 amending the Act on Equal Treatment of Men and Women as regards Access to Employment and Maternity Leave, etc, the Act on Equal pay to Men and Women, the Act on Child Care Leave, the Act on Equal Opportunities for Men and Women and the Act on Equality for men and women in occupational social security schemes[6], includes the following provision on commencement:

6. The Act shall come into operation on 1 July 2001.

Act No. 141 of 25 March 2002 includes the following provision on commencement:

Section 4

(1) This Act shall come into operation the day after its publication in the Danish Law Gazette and shall be operative from 1st of January 2002.

(2) The Act on Childcare Leave shall be abolished on 1st of June 2011.

Section 5

(1) Parents of children born after 31 December 2001, but before the commencement of this Act continue to be covered by the existing rules of the Act on Childcare Leave, the Act on Equal Treatment of Men and Women as regards Access to Employment and Maternity Leave, etc. and the Act on benefits in the event of sickness or childbirth. Furthermore, in relation to adopted children received after 31 December 2001 the parents will but before the commencement of the Act be covered by the rules of the Act on Childcare Leave, the Act on Equal Treatment of Men and Women as regards Access to Employment and Maternity Leave, etc. and the Act on benefits in the event of sickness or childbirth.

(2) However, under  (1) paragraph 1 parents may before 1 June 2002 alternatively both chose to be covered by this Act by written notice to the Public Employment Service. The same applies to parents under  (1) paragraph 2 where adoption authorities decide whether the adoptive parent or one of the adoptive parents shall stay at home with the child for a period of time .

(3) Parents who are transferred from the childcare leave scheme to the extended maternity leave scheme under  (2) will have their childcare leave set off proportionally in the parental leave scheme.

(4) The Minister for Employment shall lay down more detailed rules on the transition from childcare leave to maternity leave and set off periods of childcare leave.

(5) Children born before 1 January 2002 are covered by the existing rules on maternity leave laid down in the Act on Equal Treatment of Men and Women as regards Access to Employment and Maternity Leave, etc. and the Act on benefits in the event of sickness or childbirth.

Ministry of Employment, 20 August 2002

CLAUS HJORT FREDERIKSEN

/E. Edelberg


[1] This Act concerns the implementation of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvement in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth seperate Directive within the meaning of Article 16 (1) of Directive 92/391/EEC and includes provisions which implement the Council Directive 97/80/EC of 15 December 1997 on the burden of proof in relation to gender-based discrimination, (Official Journal 1998 No. L 14, p. 6) and the Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes (Official Journal 1986 No. L 225, p. 40) as amended by the Council Directive 96/97/EC of 20 December 1996 (Official Journal 1997 No. L 46, p. 20) as well as provisions implementing the Council Directive 96/34/EEC of 3 June 1996 on the framework agreement concerning parental leave concluded by UNICE, CEEP og EFS (Official Journal 1996 No. L 145, p. 4), as amended by the Council Directive 97/75/EEC of 15 December 1997 (Official Journal 1998 No. L 10, p. 24).

[2] I.e. section 21 of the Act.

[3] I.e. section 7a of the Act.

[4] I.e. sections 7 (1), 7 (4), 10 (2), 10 (3), 10 (5), 10 (6), 10 (7) and 19 (2) of the Act.

[5] I.e. among others section 13 of the Act.

[6] I.e. section 1 (2) and section 16a of the Act