Dismissal of a childminder with a disabled child was reasonably justified

It was objectively and reasonably justified to dismiss a childminder employed by a municipality in that the dismissal was based on the employee's prolonged absence and not due to the disability of her son. The question whether indirect discrimination by association with a disabled child is covered by the provisions of the Danish Act on Prohibition against Discrimination on the Labour Market was not decisive for the outcome of the case and consequently there was no reason for a preliminary reference to the European Court of Justice. Judgment of the Danish Supreme Court of 27 April 2016.

In May 2010, the employee's position as childminder in a municipality was terminated due to the fact that the municipality, as a result of a decreasing number of children, had to eliminate one position. The childminder was of the opinion that the municipality, at the time of termination, had set aside the prohibition against discrimination due to disability set forth in the Danish Act on Prohibition against Discrimination on the Labour Market.

First of all, the Danish Supreme Court had to consider whether the employee's son - who suffered from Asperger's syndrome - was disabled in the sense of the Act on Prohibition against Discrimination on the Labour Market or not. The Court found it proven that the medical condition of the employee's son was covered by the concept of disability as the diagnosis involved a considerable functional limitation for the son with regard to his social skills and ability to deal with changes in everyday life, and that this functional limitation, among other things, prevented him from normal school attendance.

Subsequently, the Supreme Court rejected the argument that direct discrimination of the employee had taken place since the reason for the dismissal had been a reduction in the staffing level of the children's day-care service and the reason for selecting that particular employee for termination had been that, as a result of leave and absence due to illness, she had not performed the functions of a childminder since January 2009. Furthermore, the Supreme Court agreed to the assessment of the municipality that it would be pedagogically irresponsible to choose a solution implying that children had to be moved from their usual childminder to a childminder they did not know. Thus, the reason for the dismissal of the childminder was not the disability of her son, but her prolonged absence from day-care work.

Hereafter, the Supreme Court had to decide whether the employee had been indirectly discriminated, which is prohibited under the Act on Prohibition against Discrimination on the Labour Market. Indirect discrimination is deemed to occur where an apparently neutral criterion would place a person with a disability at a particular disadvantage compared with other persons unless that criterion is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

However, the Supreme Court dismissed the claim that the employee had been discriminated, accepting the municipality's allegation that the dismissal had taken place for just cause, including the consideration to avoid moving children to a childminder they did not know. Thus, the dismissal of the childminder was appropriate and necessary to achieve that aim.

The fact that every now and then it cannot be avoided, for instance in the event of a childminder's illness, to move a child to another childminder whom the child does not know, could not lead to another result. Therefore, the dismissal of the employee was not an indirect contravention of the provisions of the Act on Prohibition against Discrimination on the Labour Market.

After this, the Supreme Court did not see any reason to make a decision regarding the question whether the prohibition against indirect discrimination set forth in the Act on Prohibition against Discrimination on the Labour Market also comprises a situation where an employee who is not disabled herself is affected by measures through the association with her disabled child.

However, the Supreme Court also established that the Act on Prohibition against Discrimination on the Labour Market also must be interpreted in the light of the Council Directive regarding equal treatment in employment and occupation as well as the legal practice of the European Court of Justice.

Based on interpretation and the legal practice of the European Court of Justice, the Supreme Court found that the correct understanding of the Directive is not clarified. Such clarification could be achieved by referring the case for a preliminary ruling to the European Court of Justice. However, in this particular matter the Supreme Court did not find it relevant for the outcome of the case whether indirect discrimination by association with a disabled child is comprised by the Act on Prohibition against Discrimination on the Labour Market. Therefore, there was no basis for referring the case for a preliminary ruling to the European Court of Justice

Consequently, the Supreme Court ruled in favour of the municipality and thus reached the opposite result of the Eastern High Court.

The judgment shows that it may be justified to dismiss an employee with a disabled child always provided that the dismissal is based on legitimate grounds. However, the judgment does not deal with the situation where, as in this case, an employee who is not disabled herself is affected by measures through the association with her disabled child. Further clarification of this question requires a submission for a preliminary ruling to the European Court of Justice.

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