Under section 5 (2) of the Salaried Employees Act, an employer may - if agreed - dismiss an employee at a reduced notice if the employee has been sick for more than 120 days during the last 12 months.
At the same time, the Non-Discrimination Act and the underlying Employment Equality Directive provide that an employer must take appropriate measures in relation to the disabled employee so that the employee can work on equal terms with the other employees. If an employer does not take appropriate measures to meet the disabled employee's needs, this constitutes a violation of the employee's rights which may trigger a claim for compensation.
An employee suffered a whiplash injury and was reported sick for approx. three weeks, then worked full-time for ten months, but finally she she was on part-time sick leave ending in full-time sick leave, until the employer dismissed her at one month's notice referring to the 120-days rule.
European Court of Justice's statement on disability and 120-days rule
The Maritime and Commercial High Court asked a number of prejudicial questions to the European Court of Justice concerning i.a. the limitation of the concept of disability and whether it is consistent with the prohibition against discrimination to apply the 120-days rule to a disabled employee.
The European Court of Justice stated "that the concept of disability must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one".
Further, the European Court of Justice established that the application of the 120-days rule would constitute direct discrimination due to disability if the sickness absence is a consequence of the employer not having taken appropriate measures in relation to the employee's disability. In the situation where the employer has not fulfilled this obligation, the employer will be prevented from dismissing the employee based on the 120-days rule.
Obligation to adapt requires knowledge of the disability
In accordance with the European Court of Justice, the Supreme Court stated that the concept of disability covers a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation resulting in the person not being able to participate in professional life on equal terms with his colleagues.
According to the Supreme Court, it is, however, for the employee to prove that he is suffering from a disease covered by the concept.
In relation to the specific case, the Supreme Court stated that, at the time of the dismissal, the employee was to be considered disabled. However, the Supreme Court established that an employer may only set aside the duty to adapt the workplace if the employer knows or should know that the employee is disabled.
The Supreme Court did not find that it had been proved that the employer knew or should have known at the time of the dismissal that the employee's injury had resulted in a disability. This was due to the fact that, for ten months after the injury, the employee worked full-time before she went on part-time sick leave, but without the employer having received any specialist statements indicating that the injury was to be considered permanent.
The Supreme Court therefore found that, at the time of the dismissal, the employer could and should not have known that the employee's injury had resulted in disability, and the employer had therefore not set aside its obligation to take appropriate measures under the Non-Discrimination Act.
Dismissal according to 120-days rule was not contrary to Non-Discrimination Act
The Supreme Court stated that the purpose of the 120-days rule is to avoid that an employer feels prompted to dismiss an employee absent due to sickness immediately. The rule also makes it easier for a person with a risk of sickness absence to get a job.
On this basis, the Supreme Court generally ruled that the prohibition against discrimination due to disability does not prevent application of the 120-days rule.
The employee's sickness absence due to the disability was therefore to be included in the calculation of the 120 sick days and, consequently, the employee was not entitled to an additional notice. The Supreme Court then set aside the ruling of the Maritime and Commercial High Court and ruled in favour of the employer.
The ruling determines that it is for the employee to prove that he/she is suffering from a disease/injury that may be characterised as a disability. The employer is therefore only obligated to take appropriate measures if the employer is aware or should have been aware of the disability.
Finally, the Supreme Court also establishes that the Danish 120-days rule of the Salaried Employee Act is generally not contrary to EU law and the Employment Equality Directive.