The decision of a school in Denmark to dismiss a physical education (PE) teacher who refused to attend work on a Saturday due to his religion was not in violation of the Anti-Discrimination Act (the Act), the Western High Court has ruled.
According to the Act, a provision, condition or practice that may seem neutral can constitute indirect discrimination against persons of a particular religion or belief if it puts them at a disadvantage compared with other persons. In order to avoid discrimination, the means of achieving the specified aim of a provision, condition or practice must be objectively justifiable as appropriate and necessary.
The question in this case was whether the school's dismissal of its PE teacher was justifiable, after the teacher had refused to attend work on a Saturday at an event at which he would have been required to show parents and children how the school's PE course was delivered. The Board of Equal Treatment had found the dismissal contrary to the Anti-Discrimination Act, but the school disagreed and took the case to the Western High Court.
The Court found that, as a starting point, the requirement to attend work on a Saturday constituted indirect discrimination on grounds of religion, as it placed individuals with the same religion as the PE teacher (ie, Seventh-Day Adventism) at a disadvantage compared with others. Therefore, the question was whether:
- the requirement was objectively justified by a legitimate aim; and
- the means of achieving that aim were appropriate and necessary.
It was uncontested during the proceedings that the requirement for the PE teacher to work at the event being held on a Saturday was appropriate and objectively justified by a legitimate aim. Consequently, the Court had to decide whether the requirement was necessary, including how such a condition should be further interpreted.
Among other things, the PE teacher contended that according to European Court of Justice (ECJ) case law on the EU directive that establishes a general framework for equal treatment of employees, any difference in treatment must be "strictly necessary". However, the Western High Court stated that ECJ case law does not establish a condition that indirect discrimination must be "strictly necessary" in order to be lawful.
In its assessment, the Court considered that the school had a special need for presenting PE as part of a new study programme at the school and that the teacher was the school's only PE teacher. Further, the Court stated that the school's management must be allowed a certain degree of discretion to determine the level of professionalism that it wished to present at the event.
The school had decided that it was not possible to use substitute teachers at the school to replace the absent PE teacher. Therefore, the school had to hire two external PE teachers – which incurred fees – to present the course at the necessary professional level.
Accordingly, the Court found that it had been necessary for the school to require the PE teacher to work at the Saturday event and the requirement was, therefore, not in breach of the Anti-Discrimination Act. Thus, the teacher's dismissal was not contrary to the Anti-Discrimination Act, as it could be reasonably justified based on his failure to attendant the event.
This case has been appealed to the Supreme Court.
Based on the case at hand, an employee is not necessarily entitled to be relieved of their working duties on certain days, even if working on such days may be contrary to the employee's religion. However, this may constitute unlawful indirect discrimination if such action puts the employee at a disadvantage compared with other individuals (who do not have the same religious belief).
The Court stated that the Anti-Discrimination Act should not be interpreted in a way meaning that the requirement of attendance on the days in question must be "strictly necessary" to be lawful. The Court further specified that the employer must be allowed a certain degree of discretion when assessing what must be regarded as necessary, which – in this case – involved an assessment of the professional standard necessary when presenting the school.
Based on the specific circumstances of this case, the Court found that the employer had discharged the burden of proving that it was necessary to require the PE teacher to attend the event. Accordingly, the employer had not acted contrary to the prohibition of discrimination on grounds of religion.
For further information on this topic please contact Yvonne Frederiksen at Norrbom Vinding by telephone (+43 35 25 3940) or email ([email protected]). The Norrbom Vinding website can be accessed at norrbomvinding.com.