Recently, The Supreme Court has delivered judgment in two cases, in which it was a question of, whether a disability in the sense of The Danish Act on Prohibition against Discrimination on the Labour Market existed. Employers are not allowed to terminate or in other ways discriminate employees based on race, colour of the skin, religion, political conviction, sexual orientation, age, disability, or national, social or ethnic origin. Especially questions on disabilities or age have created interpretative problems.

Employers are not allowed to terminate employees based on among other things disabilities. This is part of the prohibition against discrimination in The Danish Act on Prohibition against Discrimination on the Labour Market (the Anti-Discrimination Act).

The Anti-Discrimination Act does not include a definition of a disability. There is a number of disorders, which may be regarded as disabilities in the sense of the Anti-Discrimination Act, even if the employee has not told the employer directly that it is a disability, or if the employer did not regard the disorder as a disability.

A disability is a long-term and diagnosed physical, psychological or intellectual impairment of function, which entails that the employee in question cannot work on equal terms with other employees.

If an employee is terminated based on his or her disability, it would be conflicting with the Anti-Discrimination Act, if the employee is capable of managing the position with accommodation measures, which on the other hand may not be too burdensome on the employer.

Even if illness is not the same as a disability, long-term illness may develop into a disability. This may be the case, if the illness becomes chronic. In case of a termination pursuant to the 120 days’ rule (termination with a shorter notice in case of illness), attention should be directed at whether it could be a disability. In our previous newsletter, we discussed a Supreme Court judgment of 22 November 2017, in which the Supreme Court decided on the calculation of 120 sick days in relation to part-time absence from work due to sickness. In said case it was not submitted that it was a question of a disability.

In relation to two judgments of 22 November 2017, the Supreme Court has decided on two cases about disabilities.

The first case was about an employee who, in 2009, had had an accident that resulted in a ruptured cruciate ligament in one of her knees. After a telescopic examination of the knee, she experienced severe dizziness, which made it difficult for her to perform at work. The employer attempted to accommodate the special needs of the employee with a view to securing her possibilities of returning to the work place, including less working days, work from home days and consideration for the employee’s course of treatment. Later, the employer terminated the employee based on inappropriate behaviour during a meeting, on which the employee’s returning to the work place was discussed.

The second case was about an employee who, after a brain surgery, developed disabling fatigue. Despite the disabling fatigue, the employee tried to maintain between 12 and 18 weekly working hours. The nature of the illness was estimated as being stationary at best and progressive at worst. Therefore, the employee was unable to return to his fulltime position. Subsequently, the employer terminated the employee as a result of the extensive absence due to sickness. After the termination, by virtue of a statement of a medical specialist, the employee was diagnosed with disabling fatigue after the brain surgery.

In both cases, the conclusive question was, whether, in accordance with Danish case law on the interpretation of the term “disability”, a medically diagnosed illness should exist at the time of the termination. In both cases, the Supreme Court stated that, according to the practice of the European Court of Justice, it is not a condition, in the sense of the Directive, that a disability exists, that the functional limitation is due to medically diagnosed illness. Following this, the Supreme Court laid down that, whether the employee at the time of the alleged discrimination should be regarded as being disabled in the sense of the Directive and thereby the Anti-Discrimination Act, must be based on an estimation of all circumstances of the case, including in particular information from doctors and other health-care professionals.

Furthermore, in the first case, the Supreme Court stated that it was established that the employee was unable to return to the work place. In addition to this, the company had accommodated the special needs of the employee by offering suitable remedies in accordance with the requirements laid down in section 2a of the Anti-Discrimination Act, which sufficiently facilitated the possibilities for the employee to return to the work place. Therefore, the Supreme Court established that the termination of the employee was not based on her illness or absence due to sickness, but on her inappropriate behaviour towards the employer. Thus, the termination did not conflict with the Anti-Discrimination Act.

In the second case, the Supreme Court established that the employee’s fatigue was comprised by the term “disability”, and that the employer should have known that the employee was disabled. Furthermore, the employer did not fulfil his obligations according to section 2a of the Anti-Discrimination Act, in relation to taking measures to facilitate the return of the employee to the work place. The employee tried to pass on additional information to the employer on the symptoms after the brain surgery and tried to establish a contact between a brain damage centre and the employer. The Supreme Court found that the termination was thus conflicting with the prohibition on discrimination due to disability, among other things because the employer (a bank) did not fulfil its obligation to taking appropriate measures.  

According to the judgment of the Supreme Court in the two cases, the conclusion is that the diagnosis at the time of the termination is still not decisive, but whether the impairment of function of physical, mental or psychological nature, which, in correlation with various barriers, may hinder the employee in participating in the professional life on equal terms with other employees, and whether the impairment of function lasts for a long time. The Supreme Court stated that no previous cases had given rise to deciding whether it could be a disability if the functional limitation was not due to a medically diagnosed illness.

The compensations for terminations that are conflicting with the Anti-Discrimination Act are calculated according to the same principles as compensations according to the Equal Treatment Act (pregnancy, maternity leave and parent or paternity leave), which means that the compensations are calculated to being 6, 9 or 12 months’ salary, typically based on the seniority of the employee.

In practice, it is often seen that the question on whether it concerns a disability or not, may give rise to challenges and the question on adaptive measures.  The employer is obligated to adjusting the work place to the disabled employee, in order for the employee to function in the position on equal terms with other non-disabled employees, but the adjustments must not impose a disproportionate burden on the employer.

Therefore, it may be sensible to submit the case to a hearing, including involving the municipality, not least, if the case concerns an employee who is in a reduced-hours job, before executing the termination of an employee who may be suffering from a disability. Should the case be brought before the court, it may become conclusive whether the employer has made adjustments (or examined the possibility of making adjustments), when the decision on, whether the termination was justified, is to be made.