In a judgment of 23 July 2021, the Western High Court found that it was not contrary to the prohibition of the Anti-Discrimination Act against differential treatment due to religion and faith to dismiss a physical education teacher who failed to appear for work on Saturdays due to his religious belief.
The Anti-Discrimination Act prohibits employers from discriminating against employees - both directly and indirectly - based on e.g. religion and faith.
It may be a case of differential treatment if a claim which appears to be neutral will put persons covered by the Anti-Discrimination Act at a disadvantage compared to other persons. This may be the case if a requirement for language or for not wearing headgear is made as, in form, such requirement will appear neutral but may affect a specific group of individuals.
However, indirect discrimination may be allowed if the requirement is objectively justified by a legitimate purpose and the means of achieving that purpose are appropriate and necessary.
The specific case
The case concerned a physical education teacher at an upper secondary school. The teacher was a member of the recognised religious organisation, the Seventh-day Adventist Church, where a central part of the religious belief is to observe Saturday as the Sabbath. Due to the teacher’s belief, he had been exempted from the upper secondary school’s annual open house event as it was held on a Saturday, which was a holiday for the teacher where he was not allowed to work.
The purpose of the annual open house event was to present the various study programmes to potentially future students and their parents, and the event was therefore important to the market the school, including attracting future students.
As opposed to previous years, physical education had become a subject of the study programme, and therefore the subject was to be presented at the open house event. The physical education teach had therefore been asked to attend despite his religious belief as he was the only physical education teacher who was employed at that time. The teacher refused to attend the event and was therefore dismissed. The physical education teacher then complained to the Board of Equal Treatment claiming that he had been exposed to indirect differential treatment based on his religion.
The Board of Equal Treatment found that the dismissal constituted indirect differential treatment contrary to the Anti-Discrimination Act. The Board found that the school had not proved that the attendance requirement was necessary. According to the Board, the school had failed to prove that it was not possible to find a replacement for the physical education teacher who could present physical education as a subject of the study programme. The physical education teacher was therefore awarded compensation equivalent to nine months’ salary.
The requirement for necessity
The upper secondary school brought the matter before the High Court. The parties agreed that the school’s requirement for attendance at the open house event was objectively justified by a legitimate purpose and was appropriate. The High Court was therefore to decide only on the the necessity of the requirement for participation in the open house event.
When assessing the requirement for necessity, it must be considered whether it was possible for the employer to apply a less drastic measure still taking into the limitations to which the employer is subject and without additional expense for the employer.
The High Court took into account that the event was planned for the day in question in consideration of the events held by other educational institutions and the participants to enable e.g. ‘efterskole’ college students to participate.
In addition, weight was given to the fact that physical education was a new subject of the study programme, and that only one physical education teacher was employed at the time when the open house event was held.
Based on the witness statements, the High Court found that it was not possible for the upper secondary school to hold the open house event in a satisfactory way by rearranging the other employees or by internal substitution as neither of the other employees had the necessary qualifications for presenting physical education as a subject of the study programme.
Due to the physical education teacher’s non-attendance, the school had to employ two external physical education teachers against payment to be able to carry the event through.
The school had also limited the physical education teacher's work to three hours on the Saturday in question.
Against this background, the High Court found that the attendance requirement was necessary to be able to present the subject at a necessary professional level. Therefore, the High Court did not find that the dismissal was indirect differential treatment contrary to the Anti-Discrimination Act, and the court found in favour of the school.
A certain discretion is left to employers when assessing necessity
The judgment shows that it may be a case of indirect differential treatment based on religion and faith when an employer does not take into account the holidays prescribed by the employees’ religion. Therefore, it is important for employers to be aware that they may be obligated to consider the interests of employees who based on their religion or faith need to have time off on other days than the official public holidays in Denmark.
The judgment also shows that, in cases concerning indirect differential treatment, a certain discretion is left to employer when assessing what is considered necessary to allow for a legitimate purpose with e.g. a requirement for attendance.
It is a concrete assessment whether the requirement for necessity has been met, which is also shown in the High Court’s grounds. However, as opposed to the Board of Equal Treatment, the High Court did not find that it has to be a strict requirement to comply with the necessity criterion of the Anti-Discrimination Act.
In the specific case, the High Court found that the upper secondary school had proved that the attendance requirement was necessary as none of the other employees had the necessary qualifications to present physical education as a subject.
The judgment has been appealed to the Supreme Court.