The Supreme Court has ruled that a disabled employee in the Capital Region of Denmark should have been considered for redeployment to another vacant position outside the place of work. 

Written by

According to section 2a of the Anti-Discrimination Act, employers must take appropriate measures to give employees with disabilities continued access to employment, unless this imposes a disproportionate burden on the employer. It follows from recent case law of the ECJ that such a measure may also take the form of redeployment to another vacant position that the employee would be competent, suitable and available to fill.

The question to be decided by the Supreme Court in this case was, among other things, whether the employer, when considering the possibility of redeploying an employee with a disability, was required to consider vacant positions outside the employee’s organisational place of work and whether, in that situation, there was an obligation to redeploy the employee to a vacant position outside the organisational place of work even if the employee was not the most qualified candidate.

The case concerned a social worker who was employed in a reduced hours job for 20 hours a week by the Capital Region of Denmark, working at the Neuroscience Centre at Rigshospitalet. As the social worker’s health condition deteriorated, she requested that the working hours in the position be reduced to 10 hours per week. The Neuroscience Centre assessed that this was incompatible with its operations and therefore initiated a dismissal procedure.

Prior to the dismissal, it was established that there were no other relevant vacant positions at the Neuroscience Centre and the social worker was offered to register in RegionH Match, which is a job portal normally used in connection with dismissals for operational reasons in the Capital Region of Denmark. If an employee is registered in RegionH Match they will be notified of relevant vacant positions throughout the Region, and if the employee applies for such a position they will have priority access to a job interview.

The social worker was invited to an interview for a vacant position as a social worker for 10 hours a week at another centre at Rigshospitalet, the Juliane Marie Centre (which, like the Neuroscience Centre, constitutes an independent employing authority), but was not offered employment. Instead, the Juliane Marie Centre hired a candidate with more experience in local government and for whom it would be possible to increase their working hours in the long term, taking into consideration that the Juliane Marie Centre had been promised allocation of additional social worker hours.

The social worker’s trade union then filed a complaint to the Board of Equal Treatment. The Board found that the Capital Region of Denmark had not proven that the social worker was no longer available to perform the essential functions of the position as social worker at the Neuroscience Centre and, on this basis, awarded the social worker a compensation equivalent to 9 months’ salary. As the Region did not agree with this decision, the Board brought the case before the district court, which arrived at the same result in its ruling.

The Capital Region of Denmark then appealed the district court ruling to the Eastern High Court, which found that the Region had established that the social worker was not competent, suitable and available to perform the essential functions of the position as social worker at the Neuroscience Centre. The Court also found that the social worker was not the most qualified candidate for the vacant position at the Juliane Marie Centre, and that there was no basis for criticising the Region’s efforts to redeploy her.

Obligation to redeploy
The Board of Equal Treatment decided to apply to the Appeals Permission Board for leave to appeal the part of the case that concerned the issue of redeployment to the Supreme Court. The Supreme Court case thus centred on the question of whether the efforts of the Capital Region of Denmark to redeploy the social worker satisfied the obligation in the Anti-Discrimination Act to take appropriate measures.

In this regard, the Capital Region of Denmark argued that the obligation to redeploy had to be limited to the Neuroscience Centre, which is an organisationally separate unit that employed around 1,700 employees at the time, having its own executive board, independent management and budget responsibility as well as independent authority to recruit and dismiss employees. The Region further argued that an obligation to redeploy within the entire employment area and, thus, throughout the Capital Region of Denmark, which has more than 40,000 employees, had to be considered a disproportionate burden.

In any event, the obligation to redeploy had to be considered fulfilled in light of the fact that the social worker had been considered for the only relevant vacant position in the entire Capital Region of Denmark, which she was not competent, suitable and available to fulfil due to her skills as well as inability to increase her working hours.

Obligation to consider redeployment
The Supreme Court initially stated that the employer’s duty to provide reasonable accommodation means that the employer cannot refer an employee with a disability to find and apply for vacant positions in competition with other external candidates, but must instead explore the possibility of redeploying the employee to another vacant position that the employee is competent, suitable and available to fulfil, unless this would impose a disproportionate burden on the employer.

The general legal principle that public-sector employers must fill vacant positions by public advertisement and with the most qualified candidates does not limit the obligation to redeploy under section 2a of the Anti-Discrimination Act.

Obligation to seek redeployment broadly in the organisation
The Supreme Court also held that there is no basis in legislation or in the case law of the ECJ for an employer – with reference to delegation of the authority to recruit and dismiss – to limit the organisational scope of the duty to investigate and possibly explore the possibility of redeploying employees with disabilities.

In relation to the specific case, the Supreme Court found that the Capital Region of Denmark had not established that it would constitute a disproportionate burden to examine and possibly explore the possibility of redeploying the social worker to a vacant position throughout the Region.

As regards the specific vacant position at the Juliane Marie Centre, the Supreme Court found that the Capital Region of Denmark had not demonstrated that it would constitute a disproportionate burden to redeploy the social worker to this position.

Accordingly, there had been a breach of the obligation to provide reasonable accommodation under the Anti-Discrimination Act, and the district court’s ruling awarding the social worker a compensation of 9 months’ salary was thus upheld. 

Norrbom Vinding notes:

In the public-sector labour market, there is a range of decisions from the industrial tribunal system establishing that the obligation to redeploy in the event of dismissals for operational reasons generally only extends to the area of the employing authority (i.e. the part of the organisation that has the authority to recruit and dismiss) – such as individual government agencies, faculties, hospitals, etc. – and not the entire employment area (in this case the entire Capital Region of Denmark). With its judgment, the Supreme Court has established that this principle does not apply to redeployment of employees with disabilities as part of the employer’s fulfilment of the obligation to provide reasonable accommodation under the Anti-Discrimination Act, unless in the specific situation it would impose a disproportionate burden on the employer to extend the obligation to redeploy to the entire employment area.

The judgment also establishes that the general principle of a public-sector employer filling a vacant position by public advertisement and with the most qualified candidate does not limit the obligation to redeploy in relation to employees with disabilities.

Furthermore, the ruling confirms the case law of the ECJ according to which the obligation to redeploy employees with disabilities will be conditional on there being at least one vacant position for which the employee would be competent, suitable and available to fulfil the essential functions and that the redeployment must not constitute a disproportionate burden for the employer.

Norrbom Vinding represented the Capital Region of Denmark during the legal proceedings in the district court, the Eastern High Court and the Supreme Court.

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