By Yvonne Frederiksen, Firm:  Norrbom Vinding 

A Danish district court has confirmed an Equal Treatment Board finding that it contravened both the Discrimination Act and the Equal Treatment Act to dismiss a female wheelchair user who had just returned from maternity leave.

Under the Anti-Discrimination Act an employee with a disability is particularly protected against dismissal. It also follows from the Equal Treatment Act that, in connection with a dismissal, an employer must not rely on an employee's pregnancy or maternity leave. A reverse burden of proof applies during pregnancy and maternity leave as well as after the expiry of the leave if it is shown that the decision to dismiss the employee was actually made during the employee's leave.

A female teacher who was paralysed from the navel down and therefore a wheelchair user was dismissed shortly after she returned from maternity leave. Her termination was justified by the educational institution's financial situation.

The employee complained to the Equal Treatment Board, which found that the dismissal was in violation of both the Discrimination Act and the Equal Treatment Act. The case has now been dealt with in the district court.

The district court's judgement

Initially, the district court found that the decision to dismiss the employee was actually made while she was on maternity leave and the reverse burden of proof under the Equal Treatment Act therefore applied. The district court paid special attention to information in a note prepared during a financial meeting held during the employee's leave.

The court then found that the educational institution had not discharged the burden of proof that the dismissal was not related to the employee's maternity, since the educational institution had only referred to its financial problems, and did not state why it was necessary to dismiss the employee on maternity leave.

The court then found, on the basis of the explanations given, that the dismissal was also justified by the fact that, because of her disability, the employee had less flexibility to teach outside the usual teaching place. The court also emphasised that a few months after dismissing the employee, the educational institution had hired another employee's daughter, and a third unrelated employee was employed as a substitute.

It therefore concluded that the employee had identified facts that led to the presumption of discrimination on the grounds of disability, and the educational institution had not given reasons why it was this specific employee that should be made redundant.

The district court therefore awarded the employee total remuneration under both legal bases for an amount equal to approximately 12 months salary.

Comment

The decision emphasises the fact that employers implementing operationally justified redundancies for employees with disabilities should always be able to explain in detail why it is precisely the employee with disabilities who is a candidate for redundancy. If it becomes clear that the decisive criterion could constitute indirect discrimination against employees with disabilities, the employer must demonstrate that it was objectively justified on a case-by-case basis and that the means to achieve that objective were appropriate and necessary. Finally,

It is important to note that if an employee is dismissed immediately after maternity leave, the question of whether the decision to dismiss that employee was taken during the employee's leave will be crucial, as, if so, the burden of proof will be reversed.