1 October 2012

The Eastern High Court: Acceptable to dismiss woman with ill child without usual notice after expiry of leave period

The Eastern High Court has ruled that a woman with a mentally ill child was not entitled to suspension of duty for a period exceeding one year, and that the subsequent termination of her employmentwithout observing the the usual notice was not contrary to the Anti-Discrimination Act, inter alia, because she had stated that she did not wish to resume work after the expiry of the leave.

Background

A woman employed as an on-call worker at an institution for mentally handicapped children had been granted leave without pay from 1 January 2009 to 31 March 2009 due to her daughter's mental problems.

On 23 January 2009, the woman was awarded loss of earnings under section 42 of the Social Services Act, and her leave was therefore prolonged until 12 August 2009.

Before the expiry of the leave period, the woman applied for a prolongation with the municipality, but the municipality rejected her application. However, as FOA informed the municipality about the woman's rights to one year's leave, including loss of earnings, under section 36 of the KTO Agreement on leave for family-related reasons, the municipality quickly changed its decision, and the leave was once again prolonged, this time until 31 December 2009, after which date she had been on leave for one year.

When the woman once again applied for a prolongation in November 2009, the municipality rejected the application. The municipality based the rejection on the fact that continued leave would be untenable in relation to her tasks.

The municipality added that they would consider her employment as terminated from the end of December 2009, if she did not wish to resume her position as at 1 January 2010. She responded that it was not possible for her to resume her position as at 1 January 2010, and she would therefore return her keys to the institution.

Her union claimed that the rejection was contrary to the rules on the employee's right to absence from work for family-related reasons and the rules on discrimination, and that the dismissal was also contrary to the rules on dismissal and notice of the collective agreement.

High Court ruling

The High Court referred to the ruling of the European Court of Justice of 17 July 2008 in case C-303/06 Coleman stating that the protection against direct discrimination and harassment under Directive 2000/78/EC also covered an employee with a handicapped child.

However, the Court found that the woman had not proved circumstances giving rise to the assumption that she had been subject to discrimination or harassment due to her daughter's illness in relation to the rejection concerning prolongation of the leave. The Court attached importance to the fact that the municipality had immediately corrected the rejection given in August 2009, and that she had subsequently, due to her daughter's illness and section 36 of the KTO Agreement, been granted leave for a year.

The Court specifically stated that it had not decided whether the woman's daughter was handicapped within the meaning of the Non-Discrimination Act.

As regards the claim for salary in a notice period, the Court found that the municipality had been entitled to terminate the employment without notice. The reason was that the woman had stated that she was not going to resume her position when the leave expired on 1 January 2010.

Comments

The High Court's ruling does not provide more insight into what it takes for an illness to be considered a handicap, but the ruling repeats the principle that a parent may be subject to the protection consideration under the Non-Discrimination Act.

With this ruling, the Court states that the fact that an employee is not able to perform his or her duties due to the care of a child is not sufficient to prove circumstances that may give reason to presume that discrimination has taken place. The woman had been granted leave several times in the period and in the period to which she was entitled according to the collective agreement, and there was therefore nothing indicating that she had been discriminated against.

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