On 12 September 2014, the Supreme Court found that it was not considered a violation entitling an employee to compensation when the employee had had to wait for eight months before being awarded compensation under section 2a of the Salaried Employees Act.

A 60-year old employee had been dismissed due to cutbacks, and her public employer waited eight months before paying compensation, i.a. after the Western High Court had decided that employees with public employers are entitled to compensation if they continue on the labour market notwithstanding being entitled to labour market pension. 

VIOLATION OF A LIMITED NATURE 

The Supreme Court found that, based on a general consideration, the delayed payment of the severance pay was to be considered a violation of a relatively limited nature. Based on these circumstances, the Supreme Court found that there was no basis for ordering the employer to pay compensation to the employee under section 7 (1) of the Non-Discrimination Act.

DISMISSED EMPLOYEE WAS DISABLED AND ATTENDED A JOB ON FLEXIBLE TERMS

The principal question was whether the employee had been dismissed due to disablement contrary to section 2, cf. section 1 of the Non-Discrimination Act. The employee was employed on flexible terms due to a functional impairment preventing her from making heavy lifts, and her working hours had been reduced to 16 hours a week.

DISMISSAL BASED ON LEGITIMATE OBJECTIVE

However, after having assessed the evidence, the Supreme Court found that the employee's physical strength and flexibility implied that she could not carry out the remaining tasks, and the court therefore took into account that the dismissal could not have been prevented by measures as mentioned in section 2a of the Non-Discrimination Act. The employee was therefore not subject to direct discrimination. 

The Supreme Court then assessed that the discrimination against the employee was based on a legitimate objective being the consideration of the handling of the tasks after the reorganisation of the work place, and the dismissal was therefore a necessary means for achieving this objective. She was therefore not subject to indirect discrimination either, and the Supreme Court therefore found in favour of the employer.

POSSIBLE TO DISMISS DISABLED EMPLOYEES

Disabled employees may be dismissed if they - irrespective of the measures/adjustments - are not capable of performing the tasks. This was once again established by the Supreme Court. 

The court also repeated that an employee is not entitled to compensation when the legal position is imprecise and when the employer pays compensation without undue delay. There should, however, not be any more cases left of this type as the legal position of public employers has been clear ever since the Supreme Court ruling of 17 January 2014.

contacts

Marianne Lage

Partner

Finn Schwarz

Managing Partner