Is ADHD a disability under the Non-Discrimination Act?

On 13 June 2013, the Supreme Court ruled that the summary dismissal of an employee diagnosed with ADHD was contrary to the Non-Discrimination Act as ADHD may be considered a disability. Further, the Supreme Court equated compensation under the Non-Discrimination Act with compensation under the Equal Treatment Act.

Facts

The employee diagnosed with ADHD was employed as an office assistant with a law firm (replacement during maternity leave). After only four days, the law firm dismissed the employee summarily with the reason that she suffered from ADHD and had failed to inform the law firm accordingly, and the law firm believed that she was obligated to inform about her health under the Health Data Act.

The employee claimed that the summary dismissal was unjustified and contrary to the rules of the Non-Discrimination Act prohibiting discrimination due to disability. She further claimed that the obligation to inform about her health had been met as she had provided this information to two secretaries participating in the interview.

The case was heard by the Maritime and Commercial Court as the court of first instance awarding the employee salary during the notice period and compensation under the Non-Discrimination Act fixed at four months' salary taking the employee's short employment into consideration, and as the employment was for a fixed term. The law firm filed an appeal against the ruling with the Supreme Court claiming judgement in favour of the law firm.

Supreme Court ruling

Health data
The Supreme Court found that the employee had not set aside the duty to inform about her health as she had provided this information to the secretaries attending the interview. She was therefore awarded compensation for salary and holiday allowance in the notice period.

Discrimination
The Supreme Court referred to the recent practice of the European Court of Justice on the concept "disability". For more information on this practice, please see previous newsletter Handicapbegrebet og 120-dages reglen af 15. april 2013.

Based on the medical records presented, the Supreme Court found that the the employee's condition was such that she was covered by the disability concept according to the underlying prohibition against discrimination of the EU Directive and thereby also according to the Non-Discrimination Act. The summary dismissal was therefore unjustified as the Maritime and Commercial Court also ruled.

However, the Supreme Court changed the level of compensation with the result that the employee was awarded compensation under section 7 (1) of the Act equivalent to six months' salary notwithstanding the employment being for a fixed term.

Comments

By referring to the European Court of Justice's ruling of 11 April 2013 in the cases C-335/11 and C-337/11, the Supreme Court implemented the extended disability concept. As previously mentioned, the concept "disability" of the Non-Discrimination Act and the underlying Directive is construed as follows:

"The concept of ‘disability’ must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one." The nature of the measures to be taken by the employer is not decisive for considering that a person's state of health is covered by that concept".

The fact that ADHD is covered by the disability concept is not surprising, but again, it is important to keep in mind that the Supreme Court makes a specific assessment of the person's limitations as a consequence of the diagnosis ADHD. There is still no positive list of diagnoses covered by the concept.

Consequently, it will be of essence whether the illness causing a limitation is such that it hinders the effective participation of the person in a professional life, and that the functional impairment is of a long duration.

The content of this Newsletter is not, and should not replace, legal advice.

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Finn Schwarz

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Marianne Lage

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