By Yvonne Frederiksen, Firm: Norrbom Vinding
The Equal Treatment Board has held that it was a violation of the Danish Discrimination Act to dismiss a sales assistant whose dyslexia proved more challenging than expected.
If an employee's disability is more significant than expected, can this form the basis for a dismissal? The Equal Treatment Board had to decide rule on this issue in a case when a sales assistant was dismissed because the challenges associated with his dyslexia turned out to be greater than expected.
The sales assistant was employed in a shop with a working time of eight to ten hours per week. He stated at the job interview that he suffered from dyslexia. After a month and a half, he was dismissed on the grounds that ‘his reading and spelling difficulties have proved to be a greater challenge in store work than expected.’
Against this background, the sales assistant filed a complaint with the Equal Treatment Board alleging discrimination on the grounds of disability.
At the Equal Treatment Board hearing, the sales assistant claimed that the employer had given the impression of accepting his dyslexia at the job interview. He had received tuition for his dyslexia as a child, but it had never been a problem for him as an adult. He had also informed the employer that it was possible to get financial support for a computer programme that could alleviate his dyslexia.
The company claimed that the employee had not sufficiently disclosed the extent of his reading and writing difficulties during the job interview. The employee's challenges came to the fore when he had to search for a requested item in the cash register system. As this was a big part of his duties, he had overall difficulty serving the store's customers.
The company had not foreseen that it would pose such a significant challenge, which it regretted. However, at the same time, the company did not believe that this was an indication that the employee had been discriminated against. The company had not heard of the possibility of receiving financial support for a computer programme, but felt that they had tried to enter into a dialogue with the employee to help him further.
Dyslexia was a disability
Equal Treatment Board found that the employee's dyslexia prevented him from fully and effectively participating in working life on equal terms with other workers and that he therefore had a disability. This was based on the result of a presented dyslexia test and the information on the significant challenges that the employee's dyslexia posed for the performance of the work.
Furthermore, it had to be assumed that the company knew or should know that the dyslexia constituted a disability.
Since the company had, in the dismissal, emphasised the employee's dyslexia, there were facts that gave rise to the presumption that he had been discriminated against.
Therefore, the company had to prove that it had tried to make appropriate accommodation measures to take into account the employee’s special needs.
Since the company had not investigated the possibilities of reasonable accommodation measures or entered into a dialogue with the employee, it had not lifted the burden of proof that it would be a disproportionate burden to retain the employee or that the employee was not competent, capable and available to perform the essential functions of his duties.
The company was therefore sentenced to pay an allowance of DKK 30,000, equivalent to six months' salary.
This decision is an example for employers to be aware that they can document that they have had a dialogue with employees with disabilities about possible accommodation measures before deciding on a possible dismissal.