A case of double discrimination

A Danish district court has confirmed an Equal Treatment Board finding last year that it contravened both the Anti-Discrimination Act and the Act on Equal Treatment of Men and Women to dismiss a female wheelchair user who had just returned from maternity leave.

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Under the Anti-Discrimination Act an employee with a disability enjoys special protection against dismissal. It further follows from the Act on Equal Treatment of Men and Women that, in connection with a dismissal, an employer must not rely on an employee's pregnancy or childbirth-related leave. A reverse burden of proof applies during pregnancy and childbirth-related leave as well as after the expiry of the leave if it is shown that the decision to dismiss the employee was actually made during the employee's leave.

A female teacher who was paralysed from the navel down and therefore a wheelchair user was dismissed shortly after she returned from childbirth-related leave. The termination was based on the educational institution's financial situation.

The employee complained to the Equal Treatment Board, which found that the dismissal was in violation of both the Anti-Discrimination Act and the Act on Equal Treatment of Men and Women. The case has now been heard by a district court.

The district court's judgment
Initially, the district court found that the decision to dismiss the employee was actually made while she was on childbirth-related leave and the reverse burden of proof under the Act on Equal Treatment of Men and Women therefore applied. The district court paid special attention to information in a memo prepared during a financial meeting held during the employee's leave.

The court then found that the educational institution had not discharged the burden of proof that the dismissal was not related to the employee's childbirth-related leave, since the educational institution had only referred to its financial problems and did not state why it was necessary to dismiss this particular employee who was on childbirth-related leave.

The court then found, in light of the explanations given, that the dismissal was also based on the fact that, because of her disability, the employee had less flexibility to teach outside the usual teaching place. The court also emphasised that a few months after dismissing the employee, the educational institution had hired another employee's daughter, and a third unrelated employee, who had retired, was employed as a substitute.

The court therefore concluded that the employee had identified facts which led to the presumption of discrimination on the grounds of disability, and the educational institution had not given reasons why it was this specific employee that should be made redundant.

Accordingly, the district court awarded the employee a total compensation under both legal bases of approximately 12 months’ salary.

Norrbom Vinding notes

  • that the decision emphasises the fact that employers implementing redundancies for operational reasons for employees with disabilities should always be able to explain in detail why it is precisely the employee with a disability who is a candidate for redundancy; and
  • that if it becomes clear that the decisive criterion could constitute indirect discrimination against employees with disabilities, the employer must demonstrate that it was objectively justified on a case-by-case basis and that the means to achieve that objective were appropriate and necessary; and, finally,
  • that it is important to note that if an employee is dismissed immediately after childbirth-related leave, the question of whether the decision to dismiss that employee was taken during the employee's leave will be crucial, as, if so, the burden of proof will be reversed.

The content of the above is not, and should not be a substitute for legal advice.

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