A recent case before the Board of Equal Treatment involved a municipality's alleged discrimination against a disabled employee who was relocated to another flexible job with a reduced salary and later dismissed on the grounds of improving efficiency. In a May 4 2016 decision, the board found that the employee had accepted employment in a new flexible role, as she could no longer perform her work assignments. Further, it found that the salary reduction was not an expression of discrimination, but rather a question of applying new rules for flexible jobs, and that the termination of employment had been based on a shortage of suitable work. As a result, the board found in favour of the municipality.
An employee with a brain injury had been employed in a flexible job as a pedagogical consultant with a municipality since April 2009. In February 2013 a meeting was held between the employee and the municipality in which both parties acknowledged that the employee could no longer perform her work. In this regard, the employee wrote a letter to her union, in which she expressed her gratitude that her work could be adapted according to her functional level, even though it would have financial consequences for her. The employee acted as an office assistant in the new flexible job from May 2013 until her employment was terminated on July 31 2014. The municipality's reason for terminating employment was due to:
- an initiative to improve efficiency in the workplace; and
- the impossibility of finding other assignments for the employee.
The employee argued that the municipality had disregarded the Anti-discrimination Act's prohibition on discrimination due to disability.
The Board of Equal Treatment considered whether:
- a disability existed as stipulated in the act; and
- the municipality knew or should have known that the employee had a disability.
The board found that the employee's brain injury was considered a disability under the act as:
- the employee was prevented from fully and effectively participating in the labour market on an equal footing with others; and
- this restriction was long-term.
Further, the municipality had hired the employee in a flexible role and participated in various meetings regarding the employee's need for light work, and had therefore been aware of her disability when it terminated her employment.
The Board of Equal Treatment also considered whether the employee had established factual circumstances which suggested that she had been discriminated against. It found that:
- the employee's salary reduction was a result of her new flexible role; and
- her employment had been terminated because there was no other suitable work that she could perform.
In this context, the Board of Equal Treatment found reason to believe that the employee had been subject to discrimination.
If a person can establish factual circumstances suggesting that he or she has been discriminated against, the counterparty must prove that the principle of equal treatment has not been violated. However, the Board of Equal Treatment dismissed the idea that the municipality had violated the principle of equal treatment. In this respect, the Board of Equal Treatment considered that both parties had agreed that the employee could no longer perform the assignments required in her former flexible role and, as a result, the employee had accepted the offer of employment in a new flexible job. The corresponding salary reduction was merely a consequence of the fact that the rules for the remuneration of employees in flexible positions had been amended as of January 1 2013, and was therefore not an expression of the municipality's discrimination against the employee. The subsequent termination of employment had been based on a shortage of suitable work. Consequently, the Board of Equal Treatment found in favour of the municipality.
The decision shows that if a disabled person is relocated or his or her work assignments are changed due to an inability to perform key responsibilities, it is not a violation of the Anti-discrimination Act's prohibition on discrimination due to disability. As a result, the decision establishes that a disabled employee can be legally terminated due to a shortage of suitable work.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.