On 22 November 2017, the Danish Supreme Court issued two new judgments concerning discrimination on grounds of disability, including the requirement for the duration thereof.

The Discrimination Act

The Discrimination Act implies, inter alia, that an employee may not be dismissed if this is by reason of the employee's disability.

Based on extensive EU case law, it has been established that disability exists when "a limitation due to physical, mental or psychical injuries, which in combination with various barriers can prevent the affected person from fully and efficiently participating in working life on an equal footing with other employees" and this limitation of performance is of a long-term nature.

Facts of the case in brief

Both cases relate to dismissals of employees who subsequently raised claims for compensation against the employers as they considered the dismissals to be in violation of the Discrimination Act and to be a result of the employees' disabilities.

In the first case, A was employed on 1 February 2009 as a system developer with B. On 18 May 2009, A was exposed to an accident in her spare time in connection with karate practice. On 2 June 2009, she was MRI-scanned, and on 23 June 2009 an endoscopy was conducted. After the examination, A experienced increased dizziness and consequently went on sick leave. A was dismissed from her position with B by notice of termination given on 25 November 2009.

In the second case, C had been employed with D since 17 July 1995. On 24 September 2012. C underwent brain surgery as she had been diagnosed with NF2 (which is a rare disease forming tumors on the hearing nerves). After the surgery, C was very tired and therefore had to work part-time for an extended period. On 28 August 2013, C was given notice of termination.

The main question of the two cases was whether the employees had been discriminated against due to disabilities in connection with their respective dismissals, including in particular 1) whether the disease should be medically diagnosed and 2) how much is required in relation to the assessment of whether the disease is of a "long-term" nature?

The Supreme Court's judgments

In the first case, the Supreme Court stated that it was not a requirement for establishing whether disability existed in the sense of the Discrimination Act that A's condition was caused by a medically diagnosed disease.

In this connection, the Supreme Court noted that the European Court of Justice has repeatedly ruled that illness is not in itself covered by the term of disability.

It must therefore be based on a concrete assessment of all the circumstances of the case, in particular information from doctors and other healthcare professionals, if the employee at the time of the alleged discrimination must be regarded as disabled in the sense of the Directive and hence the Discrimination Act.

In the assessment of evidence, the Supreme Court emphasised that B, in view of the available sparse information about the cause of A's sickness absence and the prospects (i.e. the duration of the disease) for her resumption of full-time work, did not have reason to assume that her problems with dizziness would prevent her from returning to work within a short period of time. Thus, regardless of whether the dizziness disorder met the conditions for being considered a disability, it was not documented that the disorder was of a long-term nature (i.e. chronic).

In addition, B had in different ways tried to meet A's special needs in order to facilitate her potential return to the workplace.

In summary, the Supreme Court deemed that the dismissal of A was not due to her illness or absence due to illness, which is why A had not been discriminated against due to disability and was therefore not entitled to compensation under the Discrimination Act.

In the second case, C suffered from a brain disease causing fatigue. At the time of the notice of termination, there was no medical diagnosis of the duration of C's fatigue condition. The premises of the judgment are identical to those of the first judgment, including the fact that the disease is not required to be medically diagnosed.

However, the Supreme Court concludes:

"For the reasons stated by the High Court, the Supreme Court agrees that C's state of fatigue is covered by the disability term of the Discrimination Act, and that D should have been aware that she was disabled in the sense of the law (...)"

In addition, it may be noted that the High Court inter alia had stated the following:

"Her functionality limitation due to the diagnosed debilitating fatigue which entailed that C could only work 12-18 hours a week thus appeared to be of a long-term nature at the time of termination notice (...)"

The decisive argument is therefore that the disease at the time of termination notice "appeared" to be of a long-term nature. C was subsequently awarded a 12 months compensation while the Supreme Court also noted that D had not fulfilled its duty to take appropriate measures pursuant to section 2a of the Discrimination Act.

Bird & Bird's comments

From the two judgments, it can be concluded that it is not a requirement that the disease has been conclusively medically diagnosed as long as it is sufficiently supported by documentation and information from doctors and other healthcare professionals and all other circumstances of the case.

Furthermore, it was crucial in both cases that it was sufficiently documented what the prospects for the return of the employee were, i.e. whether the disease appeared to be of a long-term nature at the time of termination notice. If so, and if the disease can otherwise be described as a disability, as described above, the employee is protected by the Discrimination Act. In case of uncertainty regarding the duration of the disease, the employee will not be protected by the Discrimination Act, whether or not the disease in itself can be regarded as a disability.

Case numbers 305/2016 and 300/2016