Supreme Court: Seventh-day Adventist could be ordered to work on his holiday

The case concerned a physical education teacher who was a member of the religious community, the Seventh-day Adventist Church, to which Saturdays are holy. The teacher was employed at a high school which had requested all employees to come to work on a Saturday because the school held an open house event for future students and their parents.

However, the employee refused to come to work, as it was against his religion. However, the high school maintained the order that the employee had to come to work for three hours, as physical education had become a permanent major and because the teacher was the only one teaching that course. When the teacher, despite the order, did not show up for work, he was dismissed.  

The case was first brought before The Board of Equal Treatment, which assessed that the dismissal of the teacher was in breach of the Discrimination Law and awarded the teacher compensation equivalent to nine months’ salary. The high school then brought the case before the Western High Court, which changed the decision to acquit the high school.

The Supreme Court’s decision

The Supreme Court initially determined that the teacher, after the high school ordered him to work on the Saturday in question, was put at a disadvantage compared to others because of his religion or belief and was therefore indirectly discriminated in accordance with section 1 (3) of the Discrimination Law.

Indirect discrimination can, in accordance with the Discrimination Law Section 1 (3), be justified if it is objectively reasoned, appropriate and necessary.

The parties agreed that the order was objectively justified in a factual purpose and was appropriate.

The decisive question then was whether the order was also necessary.

In this connection, the Supreme Court considered that the open house event was necessary for the marketing of the high school to possible future students and their parents.

The time for the event was fixed for the Saturday in question with consideration to the events of other educational institutions and the ability of the target group to participate in the event. It was also a challenge for the management that the teacher was the only physical education teacher at the time, which is why he had to present and teach at the open house event.

As a result, the management was forced to hire two external teachers to present and teach the physical education course at the event.

On this basis, the Supreme Court found it proven that the order that the physical education teacher should work for three hours at the open house event was necessary, and that it was therefore not contrary to the rules of the Discrimination Law to dismiss the physical education teacher because of his absence from the event.

Read the Supreme Court’s decision here.

Lund Elmer Sandager’s comment

The judgment shows that consideration for an employee’s religion does not necessarily prevent the employer from being able to draw on the employee’s labour on holidays if this can be justified based on operational considerations.

Lund Elmer Sandager’s employment law team provide legal advice i.e. on how conflicts about religious considerations can be prevented based on factual considerations without this leading to an erosion of the employer’s right to direct and distribute work. If you have any questions, please do not hesitate to contact Attorney David Bar-Shalom or Assistant Attorney Mina Faiz.