Dismissal of disabled employee was not contrary to the anti-discrimination act 

The Supreme Court has ruled in a case as to whether an employee's sympathetic reflex dystrophy was long-term and therefore constituted a disablement within the meaning of the Anti-Discrimination Act, and whether the municipality, which was the employer, had observed its obligation to adapt.

On 1 April 2009, a city planner was employed with the Municipality of Ikast-Brande. Shortly after, the employee was involved in a work-related traffic accident and a couple of months later, she was diagnosed with sympathetic reflex dystrophy.

Sympathetic reflex dystrophy is a chronic pain disorder in a limited area of the body. There is no immediate cure, but often patients recover wholly or partly after a few years.

When she was dismissed, she had been partially absent due to sickness for one year and three months. The doctors' prognosis was still that the duration of the disorder was uncertain, but the disorder could improve for up to two years after the accident. Or the disorder could improve later or not at all.

Prior to the dismissal, it was discussed whether the employee could be transferred to a part-time position of 20 hours per week. However, the employer found that this was not an option as the pressure on the remaining city planners would then be too heavy, and it was considered unrealistic to employ another city planner for 17 hours per week as the position required a full-time employee and not two part-time employees.

The employee then brought legal action against the municipality claiming that the dismissal was contrary to the Anti-Discrimination Act's prohibition against discrimination due to disablement.

DID THE DISORDER RESULT IN LONG-TERM LIMITATIONS?

Both the Maritime and Commercial High Court and the Supreme Court referred to the European Court of Justice's definition of disability from the so-called Ring and Werge case. The parties agreed that the disorder was medically diagnosed, and that it prevented the employee from participating in professional life on equal terms with other persons. But the parties disagreed whether the disorder was to be considered long-termed.

Both the Maritime and Commercial High Court and the Supreme Court referred to the disorder's preliminary duration and to the fact that there were no prospects of the employee working full-time soon as the prognosis at the time of the dismissal was uncertain.

THE SCOPE OF ANY RELIEF MEASURES

Even though the Maritime and Commercial High Court and the Supreme Court were very much in agreement and brief as to the duration of the disorder, the courts did not agree on the relief measures to be taken by the employer. The Maritime and Commercial High Court found that part-time employment of 20 hours per week was an appropriate measure, and that no specific review had been made of the department's tasks and the employee's possibility of taking on these tasks when working part-time. Also, the employer had not tried to occupy an additional position, but solely decided that this was not an option.  Based on the above, the municipality had not substantiated that it would be a disproportionate burden to offer part-time employment of 20 hours to the employee. The employee was awarded compensation equalling six months' salary.

As opposed to the Maritime and Commercial High Court, the Supreme Court attached decisive importance to the fact that two city planners from the team had been under very heavy pressure in the period when the employee was on part-time sick leave. Based on the municipality's explanation, the Supreme Court further took into account that two part-time employees working 20 and 17 hours per week could not have carried out the same tasks as efficiently as one full-time employee. Further, it was outside the municipality's obligation to increase the staff by employing another full-time employee to the team.

Based on the above, the Supreme Court found that the municipality's evaluation that it was not possible to offer the employee part-time employment for 20 hours per week was objective. The Supreme Court therefore ruled in favour of the municipality.

COMMENTS

It has previously been established that for instance sympathetic reflex dystrophy may be a disablement within the meaning of the Anti-Discrimination Act. In order to establish whether this is the case, it is not the actual diagnose that is important, but the functional impairments that the medical condition causes and how the recovery prospects are in terms of time.  

As regards sympathetic reflex dystrophy, where the prospects of recovery are very uncertain, the course of the condition up until the dismissal and the medical information of the future prognosis will form the basis of the evaluation whether the condition is long-term.

As regards the obligation to adapt, the Supreme Court ruling shows that a very specific assessment must be made of the operational situation at the workplace. Further, the ruling determines that the employer is not obligated to increase the staff by an additional full-time employee, nor is the employer obligated to divide the position into two positions if this means reduced efficiency and a reduced service level.

contacts

Christian Traberg Bennetzen

Attorney

Finn Schwarz

Managing Partner