In the Netherlands, a pregnant employee was told that her fixed-term employment contract would not be renewed. A day after the notice, her manager informed her by WhatsApp that the reason was that she was absent a lot and she also needed to be there for her baby after she gave birth, which would be difficult, if not impossible, to combine with her work.

According to the employee, her employer was guilty of prohibited gender discrimination and therefore of serious culpable acts. She sought an award of fair compensation of over EUR 35,000.

Sub-district court: pregnancy was probably the reason for discontinuing the employment contract

According to the sub-district court, the manager's WhatsApp message suggested that the employer did not renew the employment contract because of the employee's pregnancy and/or her future motherhood. Indeed, the message specifically referred to that motherhood and made a direct connection between the employee's absence due to caring for her child and her availability to the employer.

According to the employer, however, the WhatsApp message had to be viewed in a broader context; the manager had allegedly sent it out of spite because the employer had rejected his request to reconsider the termination of his own employment contract. However, the sub-district court found that this otherwise unsubstantiated explanation was insufficient to accept that the WhatsApp message had been drafted out of spite and that it misrepresented the facts.

Reversal of the burden of proof when prohibited discrimination is suspected

Dutch law provides that the burden of proof is reversed in cases of prohibited discrimination if an employee puts forward facts that may suggest such discrimination. It is then up to the employer to prove that it has not violated any equal treatment legislation.

As the WhatsApp message gave rise to the suspicion that the employer was guilty of prohibited gender discrimination, the employer had to prove otherwise. To this end, the employer advanced two reasons for not continuing the employment contract: the employee had been absent very frequently and had not obtained her social hygiene certificate,¹ despite repeated reminders.

The employee had been absent because she had reported sick when she had to care for her boyfriend’s and foster mother’s children. The employer had held her to account for this and had also not given the impression that this absence was a reason for not renewing her employment contract.

Although the employer had indeed sent the employee repeated reminders that she had yet to obtain her certificate, there is no evidence that this was a condition for renewing her employment contract.

Consequently, according to the sub-district court, the employer had failed to rebut the suspicion of prohibited gender discrimination based on the WhatsApp message. This established that the employer was guilty of prohibited discrimination.

Determination of the amount of fair compensation

In determining the amount of fair compensation, the sub-district court assumed that the employment contract would have been renewed for one year, during which time the employee would have received a gross salary of more than EUR 25,000. However, the sub-district court took into account the pregnancy, maternity and unemployment benefits received and arrived at a maximum loss of income of more than EUR 13,000 gross.

The sub-district court also expected that the employee would have found another job soon after her maternity leave and therefore set the loss of income at EUR 7,500 gross. Finally, the sub-district court considered the employer's serious culpable acts in determining the amount of fair compensation. The sudden termination of employment during pregnancy with no prior warning, which violated a basic fundamental right, was penalized with EUR 5,000, setting the fair compensation at EUR 12,500 gross.

Decision: ECLI:NL:RBMNE:2023:1856, District Court of the Central Netherlands, 10258914 UE VERZ 22-385 JH/1050 (rechtspraak.nl)