7 months' illness did not constitute a long-term restriction as defined by the Danish Anti-Discrimination Act
07 July 2016
This was established by the Danish Board of Equal Treatment in a decision of 22 June 2016. In the specific case, an educational institution was entitled to dismiss a teacher who had been unfit for work for 7 months due to a whiplash and a concussion. The teacher's illness prevented him from participating in the labour market on an equal footing with others, but the duration of the illness of 7 months did not meet the requirement for long duration as defined by the Danish Anti-Discrimination Act.
The case involved the issue of whether a specialist teacher had been subjected to discrimination due to a disability in connection with the termination of his employment with an educational institution. In September 2014, the teacher was involved in a traffic accident, which caused a whiplash injury and a severe concussion. Immediately, the teacher went on full-time sick leave. In the end of 2015, an agreement was made to the effect that the teacher would return to work on a part-time basis with 2 workdays of 2 hours a week and with an ongoing increase of the working hours. The goal was that the teacher would resume work on a full-time basis before the summer holidays. It was uncontested that the teacher was following this work plan.
The teacher only managed to work for a short while under the agreed plan before he was dismissed on 28 April 2015. The dismissal was based on the long duration of absence due to illness and on the fact that it was unlikely that the teacher could return to work within the near future.
In the decision, the Board of Equal Treatment stated that the teacher, having sustaining a whiplash and a concussion, suffered from an illness which restricted his access to participate in the labour market on an equal footing with others. However, the Board further stated that at the time of the dismissal, the restriction had not been long-term. Furthermore, the Board stated that at the time of the dismissal, there was no information to further establish the expected duration of the teacher's restriction. At the time of the dismissal, there was only information to the effect that the teacher had sustained a whiplash and a severe concussion. In this connection, the Board made a remark that it is difficult to predict the outcome of the whiplash injury, for which reason it was uncertain when the teacher would be able to resume work.
Accordingly, the Board of Equal Treatment found that the teacher had failed to prove that he suffered from a disability as defined by the Danish Anti-Discrimination Act at the time of the dismissal. Consequently, the Board found in favour for the educational institution.
The decision shows, in accordance with previous case law, that a restriction of 7 months does not meet the requirement for long duration. However, it is important to pay attention to the fact that medical information on the restriction's expected duration can affect the assessment as to whether the requirement for long duration has been met.
Plesner represented the educational institution before the Board of Equal Treatment.
The teacher only managed to work for a short while under the agreed plan before he was dismissed on 28 April 2015. The dismissal was based on the long duration of absence due to illness and on the fact that it was unlikely that the teacher could return to work within the near future.
In the decision, the Board of Equal Treatment stated that the teacher, having sustaining a whiplash and a concussion, suffered from an illness which restricted his access to participate in the labour market on an equal footing with others. However, the Board further stated that at the time of the dismissal, the restriction had not been long-term. Furthermore, the Board stated that at the time of the dismissal, there was no information to further establish the expected duration of the teacher's restriction. At the time of the dismissal, there was only information to the effect that the teacher had sustained a whiplash and a severe concussion. In this connection, the Board made a remark that it is difficult to predict the outcome of the whiplash injury, for which reason it was uncertain when the teacher would be able to resume work.
Accordingly, the Board of Equal Treatment found that the teacher had failed to prove that he suffered from a disability as defined by the Danish Anti-Discrimination Act at the time of the dismissal. Consequently, the Board found in favour for the educational institution.
The decision shows, in accordance with previous case law, that a restriction of 7 months does not meet the requirement for long duration. However, it is important to pay attention to the fact that medical information on the restriction's expected duration can affect the assessment as to whether the requirement for long duration has been met.
Plesner represented the educational institution before the Board of Equal Treatment.
