Supreme Court ruling on compensation under the Part-Time Employment

HR News
20 Aug 2012

supreme court ruling on compensation under the part-time employment act

Yvonne Frederiksen
Supreme Court ruling on compensation under the Part-Time Employment Act
A dental assistant who was dismissed after refusing to work full time was awarded 3 months’ pay by the ‎Danish Supreme Court.‎
Part-time employees are protected against discrimination under the Danish Part-Time Employment Act. ‎If an employer dismisses a part-time employee and the employee can show that there is reason to ‎believe that the reason for the dismissal was the employee’s wish to work part time, the onus of ‎disproving this will be on the employer. But what standard of proof applies to the employer then? This ‎issue was considered by the Danish Supreme Court in this case.‎
Two dentists who owned a clinic together needed to increase the number of dental assistant hours. The ‎clinic was in the process of being ISO certified, the dental hygienist was returning from her maternity ‎leave and one of the dentists wanted to work longer hours. The clinic had a total of four dental ‎assistants, all of them part-time employees. To achieve the extra number of hours needed, the dentists ‎gave notice to the dental assistant working the least number of hours that she would have to work 24 ‎instead of 37 hours a week.‎
The dental assistant did not want to transfer to full time and was then dismissed. She believed that her ‎dismissal was contrary to the Danish Part-Time Employment Act because she had refused to switch to ‎full time, and she contacted her trade union. The dentists, on the other hand, believed that dismissing ‎the assistant and hiring a new full-time assistant was justified by operational needs. After the lower ‎court’s judgment, the case was appealed twice, thus ending up before the Danish Supreme Court.‎
Not a considerable inconvenience
The Supreme Court believed that the dental assistant had established a presumption of discrimination ‎because she had been dismissed immediately after refusing to work full time. Thus, the burden of proof ‎shifted and the dentists were then required to prove that the request for the dental assistant to work ‎full time was justified by operational needs.
The Supreme Court accepted the dentists’ need for more assistant hours, but was not satisfied that it ‎would have been a considerable inconvenience or disproportionately costly for them to cover the need ‎for additional hours by hiring another part-time dental assistant. Accordingly, the dentists had failed to ‎discharge the burden of proof, and the dental assistant was awarded 3 months’ pay in compensation ‎under the Danish Part-Time Employment Act.‎
The Supreme Court thus overruled the High Court, which had ruled in favour of the dentists. Click here ‎‎to see our commentary on the ‎High Court judgment.‎


Norrbom Vinding notes

  • that the ruling, which is specific to the facts of the case, seems to impose relatively strict ‎requirements on the employer’s proof that it is impossible to accommodate the operational ‎needs of the business other than by dismissing a part-time employee who has refused to ‎transfer to full time; and‎

  • that the Danish Supreme Court did not address the issue of whether section 4a(3) of the Danish ‎Part-Time Employment Act also covers the situation where an employee is dismissed for ‎refusing to work longer hours, as the parties to the case agreed that this situation was covered ‎by the Act.‎