Since April 2009, an employee with a brain injury had been employed in a flexible job as a pedagogical consultant in a municipality. In February 2013, a meeting was held between the employee and the municipality where both parties acknowledged that the employee was no longer able to perform her work assignments. In this connection, the employee wrote a letter to her union where the employee expressed her gratitude that her work assignments could be adapted in relation to her functional level, even though it would imply financial consequences for the employee. As of May 2013, the employee acted as office assistant in the new flexible job until the employee's employment was terminated to expire on 31 July 2014. The municipality's reason for terminating the employment was that the employee's work assignments were discontinued due to an efficiency improvement in the workplace and that it was not possible to find other work assignments for the employee. The employee argued that the municipality had disregarded the prohibition against discrimination due to disability under the Danish Anti-Discrimination Act.

First of all, the Board of Equal Treatment was to consider whether a disability as stipulated in the act existed and whether the municipality knew or should have known that the employee had a disability. The Board of Equal Treatment found it proven that the employee's brain injury was covered by the disability concept, as the employee was prevented from fully and effectively participating in the labour market on an equal footing with others, and as this restriction was long-term. The municipality had hired the employee in a flexible job position and had participated in various meetings regarding the employee's need for light work, for which reason the municipality was aware of the employee's disability upon its termination of the employment.

Secondly, the Board of Equal Treatment was to consider whether the employee had established factual circumstances suggesting that the employee had been discriminated against. The Board of Equal Treatment took into account that the employee's salary reduction was a consequence of the employee having been employed in a new flexible job position and that the reason for the termination of the employee's employment was that there were no more work assignments that the employee was able to perform. Against this background, the Board of Equal Treatment found reason to believe that the employee had been subject to discrimination.

If a person can establish factual circumstances suggesting that he or she has been discriminated against, it is for the counter party to prove that the principle of equal treatment has not been violated. However, the Board of Equal Treatment dismissed that the municipality had violated the principle of equal treatment. In this respect, the Board of Equal Treatment took into account that both parties were in agreement that the employee was no longer able to perform the work assignments of her former flexible job position, for which reason the employee had also accepted the offer of employment in a new flexible job position. The salary reduction was merely a consequence of the fact that the rules for remuneration of employees in flexible positions had been amended as of 1 January 2013 and thus not an expression of the municipality's discrimination against the employee. The subsequent termination was based on shortage of work. Consequently, the Board of Equal Treatment found in favour of the municipality.

The decision shows that it is not a violation of the prohibition against discrimination due to disability under the Danish Anti-Discrimination Act if a disabled person is relocated or his or her work assignments are changed when the reason is that the employee is no longer able to perform his or her work assignments. The decision thereby establishes that a disabled employee can be legally terminated due to shortage of work.