- 29 Apr 2016
It was neither direct nor indirect discrimination when a municipality dismissed a childminder with a disabled child, ruled the Danish Supreme Court.
Under the Danish Anti-Discrimination Act, employers are not allowed to discriminate against employees on grounds of disability. With a judgment from the EU Court, the protection against direct discrimination was expanded to also include discrimination on grounds of a child’s disability – if the employee provides the main part of the care for the disabled child.
In this case, the Danish Supreme Court was asked to decide if a childminder’s child was disabled within the meaning of the Danish Anti-Discrimination Act and, if so, if the dismissal of the childminder was discrimination within the meaning of the Anti-Discrimination Act.
The case concerned a childminder who worked for a municipality and had a son with Asperger’s syndrome and various other conditions. Due to her son’s situation, the childminder applied for a leave of absence to care for him. The leave was granted. As a result of the declining birth rates, the municipality had to downscale the childminding services – and this was felt by the childminder, who was 15 months into her leave.
The childminder believed that she had been dismissed because of her son’s disability and therefore issued proceedings against her employer, claiming compensation. The employer did not agree with the childminder, arguing that she had been dismissed because she was the most expendable employee based on an objective assessment of operational needs. It was a factor in this assessment that it would be the least invasive measure in respect of the children to dismiss the childminder on leave instead of a childminder in active service; otherwise the children would have to be moved to a childminder they did not know.
Neither direct nor indirect discrimination
A unanimous bench ruled in favour of the employer. The Court held that the son was disabled within the meaning of the Anti-Discrimination Act, among other things because the son suffered from Asperger’s syndrome to the extent that he had considerable functional limitations.
The next question before the Court was whether the employer had discriminated directly against the childminder on grounds of the son’s disability. The Court held that the dismissal did not constitute direct discrimination as the reason for the dismissal was not the son’s disability, but rather the childminder’s long-term absence.
The last question before the Court was whether the employer had discriminated indirectly against the childminder in its handling of the matter. The Court held that the decision to safeguard the children’s interests by not taking them out of their usual environment and placing them with a childminder they did not know was reasonable. The decision to select for dismissal the childminder who had been absent from work for a long period of time was an appropriate and necessary decision in order to safeguard the children’s interests and provide a secure and stable environment for them.
Norrbom Vinding notes
- that the question of whether a person is disabled within the meaning of the Danish Anti-Discrimination Act will always come down to an assessment of his or her functional limitations in each individual case;
- that, with this judgment, the Supreme Court established that the employer’s assessment in terms of who was most expendable when downscaling the child-minding services was objective; and
- that the legal question of whether the protection afforded to parents of disabled children also extends to indirect discrimination still has not been answered and will have to await further case law from the EU Court.
Norrbom Vinding represented the employer in the proceedings.