It was not contrary to the Non-Discrimination Act when an employee was rejected additional leave in connection with her daughter's mental problems.

An employee at a municipality was granted leave without pay for three months due to her daughter's mental problems. The leave was extended by 4½ months, but the municipality rejected extending the leave any further.

The employee's union drew attention to a right to leave for one year under the collective agreement for family-related reasons, and the municipality then granted leave for one year, but rejected extending the leave any further after one year.

DID NOT RETURN TO HER POSITION

The employee stated that she would not return to her position at the end of her leave, and the municipality therefore chose to terminate the employment. The employee claimed salary in the notice period and compensation for discrimination due to her child's handicap.

INTERPRETATION OF COLLECTIVE AGREEMENT LIES WITH THE INDUSTRIAL TRIBUNALS

The Supreme Court noted that its was not competent to interpret the provision of the collective agreement entitling the employee to take leave as this competence lies with the industrial tribunals. The court further found that it had not been proved that the employee was entitled to leave exceeding the year she had already been granted and had taken. 

NOT ENTITLED TO SALARY IN THE NOTICE PERIOD

The Supreme Court dismissed the claim for salary in the notice period as the municipality had been entitled to terminate the employment because the employee had stated that she did not wish to return to her position at the end of the leave.

NO DISCRIMINATION

Finally, the Supreme Court found that no information had been provided indicating that the employee had been subject to discrimination due to her daughter's illness when being denied an extension of the leave. It was therefore not necessary to assess whether the daughter's illness was a handicap within the meaning of the Non-Discrimination Act. 

The Supreme Court then found in favour of the municipality.

COMMENTS

The practice of the European Court of Justice establishes that the prohibition against discrimination due to a handicap also includes an employee with a handicapped child. 

But the Supreme Court did not find it necessary to assess whether the employee's daughter's illness was a handicap within the meaning of the Non-Discrimination Act. This is due to the fact that the employee had taken the leave to which she was entitled under the rules of the collective agreement. Even if the court had assessed that her daughter had a handicap, she had not been discriminated against compared to other employees having the same rights in similar situations. 

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

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Marianne Lage

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