Supreme Court: Dismissal of disabled employee was justified

In a judgment passed on 6 September 2022, the Supreme Court had the opportunity to take a position on the obligation to adjust, which follows from Section 2 a of the Discrimination Law, and which must be observed if an employer wants to dismiss an employee who, according to the same Law, is considered disabled.
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The case briefly

The case concerned an employee who was diagnosed with anxiety, recurring depression, and ADHD. The case parties agreed that the employee was covered by the concept of disability in the Discrimination Law and was therefore to be regarded as particularly protected pursuant to the same Law.

After completing an internship in connection with a job clarification process, the employee had been granted a temporary flexible job at a non-profit organisation, where she was employed in a part-time position as a sports coordinator four hours per week. This was later changed to seven hours per week.

As a sports coordinator, the employee had, among other things, to take care of the swimming lessons, which required her to take an annual lifeguard test. She had passed the test in 2019, but at a meeting, she indicated to the organisation that she was unable to take the lifeguard test for 2020 and that she also needed a contact person available when she was at work.

After considering various measures, the organisation dismissed the employee on the grounds that it was not possible to meet her need for protection.

The Supreme Court’s decision

The reason for the Supreme Court’s judgment was based on the fact that the provision of swimming lessons was an essential function of the employee’s position as sports coordinator, that the employee’s need for discretion had been discussed in the organisation’s board of directors prior to the termination, and that the organisation had also considered and explored other options, including the possibility of getting others to take care of the swimming lessons.

Considering the nature, size and finances of the organisation, the Supreme Court concluded that the organisation had fulfilled its adjustment obligation and that the dismissal of the employee did not contravene Section 2 a of the Discrimination Law.

Read the Supreme Court's judgment BS-26753/2021-HJR here.

Lund Elmer Sandager’s comment

The judgment reaffirms the rule that an employer’s adaptation obligation must be weighed in relation to the efforts that must reasonable be made to retain an employee who is considered disabled under the Discrimination Law.

In the specific case, the employee had previously been awarded a job on special terms, but was, despite this, unable to carry out a core function of the job – swimming lessons.

It would be too burdensome to require the organisation to hire another employee to handle this part of the position, which was already adapted to the employee’s special needs.

The judgment from the Supreme Court is in line with several previous judgments, which have all confirmed that the adaptation obligation is based on an overall assessment of the efforts that an employer can reasonably be expected to make before a disabled employee can be dismissed because the individual, due to his/her disability, is unable to carry out the job.

If the employer does not fulfil the adaption obligation, it follows from previous judgments that compensation of between 6- and 9-months’ salary is awarded as a starting point.

At Lund Elmer Sandager’s employment law team, you can, among other things, get advice on how the adjustment obligation can be complied with. If you have any questions, please do not hesitate to contact Attorney David Bar-Shalom or Assistant Attorney Mina Faiz.