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If the employer knows that an employee has a disability within the meaning of the Anti-Discrimination Act, the employer must take reasonable accommodation measures in order to retain the employee, unless such measures are a disproportionate burden for the employer. The Eastern High Court recently ruled on the question of whether it constituted discrimination to dismiss four reduced hours employees as part of a cost-saving process.

Four bioanalysts had been selected for dismissal on the basis of criteria determined by the main cooperation and consultation committee (“MED-Hovedudvalg”) at the employer, one of the five regions in Denmark. The bioanalysts’ trade union issued proceedings against the employer claiming compensation for discrimination on grounds of disability.

The trade union argued that there was a significant overrepresentation of reduced hours employees among the dismissed employees, as six out of 14 dismissed employees were bioanalysts holding reduced hours positions. In itself, this created a presumption of discrimination. In addition, the employees had been assessed on the basis of factors such as flexibility and physique and, according to the trade union, these factors were connected to the employees’ disability and therefore constituted indirect discrimination.

Finally, the trade union claimed that the employees’ employment was not a disproportionate burden for the employer and, in the trade union’s view, this claim was supported by the fact that the employees had been employed for 6-16 years without having caused any issues.

The employer submitted that the dismissals were objectively justified by operational needs. The employees had been selected for dismissal based on an individual assessment, because they were unable to carry out essential functions in their position and the employer’s requirement that all employees should help perform the most essential functions in the position was necessitated by the cutbacks.

Presumption of discrimination not established by statistical data
The district court found that even though the statistical data might raise a presumption of discrimination, also after the employer’s cost-saving measures there was a large representation of reduced hours employees or employees working under special agreements for individuals suffering from long-term or chronic illness (also known as ”section 56 agreements”). Accordingly, the statistical data was not sufficient to prove a presumption of discrimination.

The court further found that the inclusion of physique and flexibility as sub-criteria in the employer’s internal assessment process did not in itself constitute facts establishing a presumption of discrimination. In contrast, the court took into account that the dismissals were a consequence of the employees not having several of the core skills required to carry out the bioanalyst position.

Finally, the court did not find reason to set aside the employer’s assessment that it was impossible to maintain a position adjusted to the employees’ limited portfolio of tasks. It was essential to the employer that all employees working the same shift were able to perform all tasks and that all employees had the possibility of switching to less demanding tasks, which, for this reason, could not be reserved for specific employees.

On that basis, the court found in favour of the employer in all four cases. The cases were subsequently appealed to the Eastern High Court which upheld the judgment of the lower court in a majority decision.

Norrbom Vinding notes

• that the decisions confirm that statistical data in itself might establish a presumption of discrimination, but it would require that such data is sufficiently significant in relation to all the employer’s employees; and
• that, as part of the duty to take reasonable accommodation measures, the employer is not required to create or maintain a position if the employee does not have the essential core skills required to perform the job and if this would constitute a disproportionate burden based on the employer’s operational situation.

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