Grounds and conclusion of the Supreme Court
In a case where a divorced mother was dismissed due to the employer's decrease in turnover, she claimed that the dismissal was contrary to section 4 of the Equal Treatment Act. The employee claimed that she was chosen over her colleagues because she was not as flexible in relation to working hours every second week when her children were staying with her. She specifically emphasised an e-mail received the day of the dismissal from her superior stating: "I have assessed that it will be more difficult for you to change your duty hours in the weeks in which your children are staying with you."
The Supreme Court found that flexibility in relation to working hours is a gender-neutral criterion. So when attaching important to lack of flexibility in connection with the dismissal of an employee, this is not considered direct discrimination. However, the Supreme Court found that this could have a wrong effect in terms of gender, and it could therefore not be ruled out that the application of such criterion could be considered indirect discrimination.
In the specific case, the Supreme Court found based on the evidence that the employer had attached importance to the employee's lack of flexibility, but that the decisive consideration had been to ensure the best composition of the staff group.
The Supreme Court therefore affirmed the High Court ruling in favour of the employer.
The Equal Treatment Act
It appears from section 4 of the Equal Treatment Act that an employer cannot discriminate men and women in connection with dismissals.
The Act contains a prohibition against direct and indirect discrimination due to gender.
Direct discrimination means that one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of sex, cf. section 1 (2).
Indirect discrimination takes place when an apparently neutral provision, criterion or practice puts persons of one gender at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means achieving that aim are appropriate and necessary, cf. section 1 (3).
If a person feels discriminated under section 4 of the Act and can prove actual circumstances that may presume that discrimination has taken place, it is for the employer to prove that the principle of equality has not been violated.
In this case, the Supreme Court made a statement of principle establishing that it is not considered direct discrimination to attach important to lack of flexibility when dismissing an employee. This view is, however, not surprising.
The Supreme Court also stated that application of the criterion flexibility may result in indirect discrimination in specific cases. In this case, the Supreme Court does not decide whether the application of the criterion flexibility has resulted in indirect discrimination as the Supreme Court found that decisive importance had not been attached to the criterion when deciding to dismiss the employee. It should be expected, however, that flexibility due to children as the decisive reason for a dismissal in other situations may result in discrimination.
The content of this Newsletter is not, and should not replace, legal advice.