Discrimination on grounds of disabled child

HR News
14 Feb 2011

by dismissing an employee who was the primary carer of her disabled child, an employer breached the danish anti-discrimination act. so the danish high court affirmed on appeal

Yvonne Frederiksen

By dismissing an employee who was the primary carer of her disabled child, an employer breached the Danish Anti-Discrimination Act. So the Danish High Court affirmed on appeal.

According to the European Court of Justice, parents of disabled children may be protected by the principle of non-discrimination in exactly the same way as if they themselves were disabled. Employers should remember this if they are planning to dismiss an employee with a disabled child.

The case concerned an office worker who was the single mother of a son. The son was undergoing medical checks at regular intervals and the mother had to take time off to accompany him. Allegedly, this did not give rise to any problems in the employment relationship. But when the son was given his diagnosis – a serious disability – the employer suggested that she take sickness leave. Two days later, she was given notice of termination.

Like child, like mother
The employee believed she had been given notice because she was the mother of a disabled child, and felt discriminated against. The employer argued, however, that she had been given notice because business was slow.

The High Court established that the reason for the dismissal was related to her disabled son and that she had therefore been discriminated against contrary to the Danish Anti-Discrimination Act. In determining whether the employee had discharged her share of the burden of proof, the Court – just like the lower court – gave weight to the close proximity in time between the diagnosis and the notice of termination. Another important factor was the fact that the employer had not told the employee about the slump in business until after she was given notice.

The High Court thus affirmed the lower court’s judgment (click here to read our commentary) and even increased the award to an amount equivalent to 9 months’ pay.


Norrbom Vinding notes

  • that the judgment establishes that the Danish Anti-Discrimination Act’s prohibition of discrimination on grounds of disability also extends to the parents of a disabled child if they provide the main share of the care needed by the child; and

  • that the judgment is in line with ECJ case law in this area.