In two cases, the Board of Equal Treatment has concluded that two teachers were wrongfully discriminated against due to religion or faith when they did not wish to compromise their religious belief.

It is considered indirect discrimination if a requirement, which is apparently neutral, places a person protected by the Anti-Discrimination Act in an inferior position compared to other persons, unless the requirement is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.

MEMBER OF JEHOVAH'S WITNESSES REFUSED TO DANCE AROUND THE CHRISTMAS TREE

One case concerned a teacher at a private school. The teacher was a member of Jehovah’s Witnesses - which does not celebrate Christmas - and did therefore not wish to dance around the Christmas tree at the school’s Christmas party as she considered the dance an active religious act contrary to her religion. She proposed to take a self-paid holiday or perform other tasks when everybody was dancing around the Christmas tree. Without entering into a dialogue concerning alternative solutions, the management dismissed her proposal. On the day of the Christmas party, the teacher reported sick, and she was subsequently dismissed.

LEGITIMATE AIM, BUT NOT NECESSARY

The Board of Equal Treatment assessed that the requirement for participation was objectively justified by the legitimate aim, which was to carry out the dance around the Christmas tree in a good way. The question was therefore whether it was necessary to maintain the requirement for participation in the dance around the Christmas tree.

During the case, it appeared that other teachers had been relieved of participating in the same event due to for instance knee problems and holiday. In addition, the school had not explained specifically why another teacher could not participate in the dance.

On this basis, and as the school had also rejected the teacher's proposal for alternative solutions instead of entering into a dialogue in this respect, the Board of Equal Treatment assessed that it could not be considered necessary that the teacher participated in the actual dance around the Christmas tree. Consequently, the dismissal constituted discrimination due to religion or belief, and the teacher was awarded compensation equivalent to 12 months’ salary.

SEVENTH DAY ADVENTIST REFUSED TO WORK ON SATURDAYS

The second case concerned a sports teacher who was a member of the Seventh Days Adventists. According to the teacher’s religious belief , Saturdays were Sabbath days. The school chose to have an open house event on a Saturday. The sports teacher had previously notified that he was not going to attend the event due to his religious belief. Prior to the event, he had sent a plan for the sports training that day. The training was planned in details and very much involved the pupils. According to the plan, the teacher was only going to have a supervisory and coordinating role. Also in this case, the management did not enter into a dialogue with the teacher concerning alternative solutions. In line with his notification, the teacher did not attend the event, and the school therefore chose to dismiss him.

LEGITIMATE AND APPROPRIATE AIM, BUT NOT NECESSARY

The Board of Equal Treatment found that the requirement for attending an open house event on a Saturday was justified by the legitimate aim to present the school’s study programme to future pupils. It was also appropriate that the school required specifically that the sports teacher attended the event as he was the only sports teacher.

The Board of Equal Treatment found that the school had not substantiated that it was impossible to find a substitute for the teacher who could carry out the sports training in a satisfactory manner. The requirement for participation was therefore not specifically necessary, and the sports teacher was thus awarded compensation equivalent to approx. nine months’ salary.

MANAGERIAL RIGHT, RELIGIOUS SPECIAL CONSIDERATIONS AND ALTERNATIVE SOLUTIONS

In general, the decisions are in line with the case law of the European Court of Human Rights, the European Court of Justice and the Supreme Court determining that discrimination due to religion and restrictions in the freedom of religion are only legal if the purpose is legitimate and the measures are proportionate.

The cases are interesting as they decide on the question whether an employee may refuse to perform various tasks referring to a specific religious belief or faith. In general, this is not possible if the requirement for performing a specific task meets a legitimate aim, and the requirement is appropriate and necessary.

The decisions show that, given the circumstances, an employer may have to enter into a dialogue concerning alternative solutions if there is a close connection between the employee’s religious belief and the refusal to perform a specific task to be able to prove that the requirement made is also necessary.

contacts

Finn Schwarz

Managing Partner

Marianne Lage

Partner

Christian Vesterling

Assistant Attorney