The employer must be able to demonstrate that the dismissal was due to another acceptable reason, and not the applicant's gender


Discrimination regarding dismissals

According to section 8(1)(5) of the Equality Act the actions of an employer can be considered discrimination as prohibited by the Equality Act if the employer dismisses an employee, terminates their contract or discontinues it in some other way or transfers or lays off one or more employees based on gender.

However, the employer has not acted in violation of said prohibition of discrimination if it is a case that seems to constitute indirect discrimination as described above in section 7, and the concept of legal justification. 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.

The regulation in the Equality Act means that an employer cannot e.g. in situations regarding dismissals decide who will keep their jobs and who will not solely based on gender. The premise of the interpretation of the regulation is that the employer must be able to demonstrate that the dismissal was due to another acceptable reason, and not the applicant's gender. Before this the employee must, however, show that it is probable that they were dismissed because of their gender. For there to be a presumption of discrimination, the person suspecting discrimination must be able to demonstrate that they and one or more employees of the other gender who did not lose their jobs (person used for comparison) 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.