In 2008, the European Court of Justice ruled in the Coleman case that protection against discrimination due to disability is not restricted to cover only the disabled person. The protection may also include a disabled child's breadwinner providing most of the care that the child needs.

Recently, the Eastern High Court ruled in two cases concerning dismissal of employees with disabled children - and the court delivered two different rulings.

Employee on leave was awarded compensation equalling 12 months' salary

In the first case, a municipal child-minder was dismissed while on leave to take care of her son suffering from Asperger syndrome. The reason for the dismissal was a reduction of the staff. In order to avoid that the children had to move to another day-care, the municipality chose to dismiss the child-minder who did not work as a child-minder at that time as she was on leave to take care of her son.

The court found that it had not been substantiated that it was necessary to dismiss the child-minder to safeguard the children's interests. The municipality had therefore acted contrary to the Non-Discrimination Act and the child-minder was awarded compensation equalling 12 months' salary.

Employer disproved presumed discrimination

The second case concerned a secretary employed with a small business. The employee's son was disabled, which had been taken into account when concluding the contract of employment. After having been absent for a long period partly due to the employee's own situation, she was dismissed with reference to the company's financial situation.

Even though the circumstances indicated that the employee had been discriminated against, the court found that the employer had proved that the dismissal was reasonably justified by the situation of the employee as well as the employer.

Conclusion

The Non-Discrimination Act only protects absence justified by the child's disability

In the case of the secretary, her absence was partly due to her own situation, meaning circumstances that had nothing to do with her child, whereas the child-minder's absence was only due to her taking care of her son.

Even if part of an employee's absence is due to a child's disability, the employee may as well have so much absence due to other circumstances that there is reason for dismissal without this being a violation of the Non-Discrimination Act.

The employer must take measures to retain the employee

According to the Non-Discrimination Act, the employer must take appropriate measures to retain disabled employees.  However, this obligation only applies if it does not result in a disproportionately heavy burden on the employer.

In the first case, the municipality had made efforts to retain the employee. But in the second case, the employer had offered the employee a permanent reduction of the working hours and a section 56 agreement under the Sickness Benefits Act, which the employee turned down.

The employer's situation may be important

When assessing whether the measures necessary to retain the employee are disproportionately burdensome, consideration must be given to the employer's financial situation.

This consideration was taken into account when the court assessed the second case as the secretary needing protection was the company's sole employee. A previous secretary had been dismissed due to the company's financial situation, and the court found that the present secretary's absence had presumably resulted in the loss of new customers. The employer was therefore not expected to take other and more burdensome measures than what had already been taken.

Employees covered by the Non-Discrimination Act due to a relationship with a disabled person enjoy the same protection

It is generally recognised that protection against discrimination due to disability extends beyond the disabled person.

See also: Cohabitee of disabled person also protected by the Non-Discrimination Act

The assessment of whether the persons in the two cases were discriminated against does not differ significantly from the assessment made as to whether a disabled employee is discriminated against.

The level of compensation in such cases is high. This proves that it is not important for the courts if the person discriminated against is not directly covered by the scope of protection of the Act. 

Compensation under the Non-Discrimination Act

In a third and more recent ruling concerning an employee who became disabled due to an industrial accident, the Maritime and Commercial High Court awarded compensation equalling six months' salary to an employee with almost eight months' seniority due to disability.

A thumb rule is that an employee dismissed contrary to the Non-Discrimination Act will be awarded compensation equalling six months' salary if the employee's seniority is less than six months and compensation equalling 9-12 months' salary in other situations.

The ruling is therefore in accordance with previous case law and reflects the court's opinion that eight months' seniority is so low that the employee is not entitled to full compensation. However, the court also mentions that the definition of the disability concept was not established by the European Court of Justice until after the discrimination had taken place which could also be a reason why compensation was reduced.

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

contacts

Marianne Lage

Partner

Maria Schmiegelow

Attorney