When is a functional impairment a long-term one?

The Danish Western High Court was not satisfied that an employee’s functional impairment at the time of dismissal could be expected to be a long-term one – and for that reason the employee did not have a disability within the meaning of the Danish Anti-Discrimination Act.

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If an employee has a functional impairment rendering the employee unable to function on equal terms with other employees, the employee does not necessarily have a disability as defined in the Danish Anti-Discrimination Act. This also requires that the functional impairment can be considered a long-term one at the time of dismissal. That was the key issue before the Danish Western High Court in this case.

The case concerned an employee who in May 2012 was involved in a road traffic accident during the working hours. The employee was subsequently on full-time sick leave because of the trauma experienced in the road traffic accident. From November 2012, the employee resumed work by 10 hours per week, and the plan was that she would gradually increase her working hours to the extent permitted by her health. The effects of the accident were physical as well as cognitive, so there was no doubt that the employee had a functional impairment. On the other hand, it was difficult to give exact timeframes for the different diagnoses established during the process – such as post-concussional syndrome (long-term effects of a concussion) and PTSD (post-traumatic stress disorder) – because it varies a great deal how long individual patients are affected by such diagnoses. In other words: it was difficult to say anything about the prognosis.

The employee’s doctor had issued a fit for work certificate in February 2013, stating that the employee could slowly increase her working hours over the following 3-4 months. Nonetheless the employee’s trade union drew up a plan in March 2013 describing how the employee could increase her working hours quicker than that. As a result, the employee tried resuming work on a full-time basis already six weeks later. However, this did not work well for the employee, so the working hours had to be reduced once again. At the same time, the management noted that particularly the employee’s cognitive impairment made it difficult for her to perform her tasks in spite of not working her full working hours.

The employee’s reduced functional capacity and partial absence eventually became a heavy operational burden for the employer. Likewise, it was uncertain if – and, in such case, when – the employee would be fully fit for work again. The employer therefore initiated a dismissal procedure in April 2013. The employee believed that the dismissal was in conflict with the Danish Anti-Discrimination Act and commenced proceedings before the Danish Board of Equal Treatment, then the district court and, finally, the High Court.

Not a long-term functional impairment
In the High Court, the employee claimed that she had a disability within the meaning of the Danish Anti-Discrimination Act and that the employer had failed to take appropriate measures to a sufficient extent. In contrast, the employer did not believe that the employee had met the burden of proving that her functional impairment fell within the scope of the concept of disability under the Ant-Discrimination Act, since her functional impairment at the time of dismissal could not be regarded as being a long-term one.

Firstly, the High Court concluded that the employee’s functional impairment in the period from the road traffic accident in May 2012 to the time of dismissal in April May 2013 had not been of long-term duration. Secondly, the High Court looked into the issue of whether there was a prognosis at the time of dismissal based on which it could be concluded that the functional impairment would have long-term duration.

The High Court found that the medical information available at the time of dismissal was characterised by such uncertainty regarding the duration of the employee’s functional impairment that the employee had not met the burden of proving that the impairment could be expected to be a long-term one at the time of dismissal. In its ruling, the High Court also took into account that shortly before the dismissal procedure was initiated the employee’s trade union had drawn up a plan according to which the employee would resume work on a full-time basis within 6 weeks.

Consequently, just like the Board of Equal Treatment and the district court, the High Court found in favour of the employer.

Norrbom Vinding notes

  • that the ruling illustrates the principle that the onus of proving that a functional impairment falls within the concept of disability under the Danish Anti-Discrimination Act at the time of dismissal lies with the employee;
  • that this means, among other things, that the employee must prove that the functional impairment is a long-term one; and
  • that according to the judgment, a functional impairment which at the time of dismissal had lasted 11 months and had an uncertain prognosis could not be considered long-term within the meaning of the Anti-Discrimination Act.

Norrbom Vinding represented the employer during the proceedings.

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

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