The supreme court: Uncertain whether prohibition against indirect discrimination covers parents with disabled children

The dismissal of a child-minder on leave to take care of her son suffering from Asperger syndrome was not contrary to the Anti-Discrimination Act. It is still uncertain whether a person covered by the protection criteria is protected against indirect discrimination.

The case concerned the question whether the dismissal of the child-minder employed with the municipality of Hørsholm was contrary to the Anti-Discrimination Act.             

The child-minder reported sick due to her son's mental illness and she was later granted leave to take care of her son, who was subsequently diagnosed with Asperger syndrome.

Due to a declining number of children in the municipality while the child-minder was on leave, there was an excess capacity of child-minders, and she was therefore dismissed due to a reduction of the staff. During the legal action, the municipality explained that in order to ensure that the children were exposed to as few changes as possible, the municipality had chosen the child-minder because she had a very high sickness absence record and the children had therefore often been moved around between child-minders in different municipalities.  

Persons who are covered by the protection criteria

In 2008, the European Court of Justice ruled in the Coleman case that the protection against discrimination due to disablement is not restricted to cover only the disabled person, but also other persons, who "are covered by the protection criteria". The Court stated that the parent providing the primary care needed by the disabled child is protected against direct discrimination due to disablement.

From the board of equal treatment to the supreme court

The Board of Equal Treatment found that the son's diagnosis was not a disablement and ruled in favour of the municipality. The district court also ruled in favour of the municipality.
However, the Eastern High Court found that the child-minder had been subject to indirect discrimination, and that indirect discrimination due to a child's disablement may also be contrary to the Anti-Discrimination Act. The child-minder was awarded compensation equalling 12 months' salary.

discrimination was justified by the considration for the children

The Supreme Court found that the son's Asperger syndrome constituted a disablement within the meaning of the Anti-Discrimination Act and the court attached importance to the fact that the diagnosis resulted in a substantial functional limitation in the son's interpersonal skills and his ability to handle changes, which prevented him from attending normal schooling.

However, the Supreme Court found that the child-minder had not been subject to indirect discrimination in connection with the dismissal as it was justified by the consideration not to move the children to a new child-minder in another municipality. The dismissal did therefore not reflect that the child-minder had been placed in an inferior position compared to her colleagues even though her long-term sickness absence was part of the municipality's assessment.

According to the Supreme Court, the consideration for the children was a legitimate objective, and the dismissal of the child-minder was an appropriate and necessary mean to achieve this objective.  

The European court of justice's construction is required

It was a question of principle whether indirect discrimination due to a child's disablement can be contrary to the Anti-Discrimination Act on equal terms with direct discrimination. A consequence would be that parents with disabled children (and other persons covered by the protection criteria) are subject to an obligation to adapt.

The Supreme Court found that there were no grounds for deciding specifically on the question as the child-minder had not been subject to direct or indirect discrimination.

However, the Supreme Court stated that the European Court of Justice's case law was still unclear as to whether an employee is also protected against indirect discrimination due to his special attachment to a disabled child, and that a clarification of the question requires presentation to the European Court of Justice for a preliminary ruling. 

Comments

It is interesting that the Supreme Court finds that the question has to be presented to the European Court of Justice as the high court took into account that the protection covers indirect discrimination.

The Supreme Court emphasises that there is basis in both the Anti-Discrimination Act and the Employment Equality Directive to assume that the protection against indirect discrimination only applies to "persons" with a disablement. On the other hand, the Supreme Court found that the Employment Equality Directive's objective (to fight discrimination) also speaks in favour of having the protection against indirect discrimination include persons covered by the protection criteria".

When the Supreme Court chooses to comment on the unclear position, without this being necessary in order to deliver a ruling, this should be considered a clear invitation to present the question to the European Court of Justice.

Finally, it is interesting that the Supreme Court comments on the definition's application to young people, who are not yet on the labour market, and where the assessment does therefore not depend on whether the person's illness constitutes a barrier preventing the employee from fully participating in the professional life.

It may presumably be concluded from the ruling that the definition of disablement in the Anti-Discrimination Act must be assessed compared to where in life the disabled person is. If the person is young and going to school, the definition must be assessed compared to the barriers that the illness may cause to the person's professional and social well-being in school.

contacts

Marianne Lage

Partner

Maria Schmiegelow

Attorney