Employer was allowed to order a Seventh-day Adventist to work on a Saturday

The Danish Supreme Court has now passed a final verdict regarding the question whether it was in contravention of the prohibition against discrimination on the grounds of religion and belief in the case where an educational institution had ordered a physical education teacher to be at work on a Saturday, although this was against his religious conviction. Plesner assisted the educational institution as well as the Danish Employee and Competence Agency ("Medarbejder- og Kompetencestyrelsen") in the case.

The case involved a physical education teacher who was a follower of the Seventh-day Adventist Church, according to which Saturday must be observed as a Sabbath day. The physical education teacher was asked to attend an open-house arrangement taking place on a Saturday, where he was to present the subject of physical education and sports. But the teacher refused to attend the arrangement because it was in conflict with his religious conviction to work on a Saturday. However, the educational institution maintained the order that the teacher had to report for work, due to the fact that the subject of physical education and sports had been introduced on a permanent basis in the study programme and that he was the only special-subject teacher of physical education and sports at the school. When the teacher failed to appear on the day in question, he was dismissed as a result of his non-attendance.

The Danish Board of Equal Treatment deemed the dismissal as a violation of the provisions of the Danish Act on Prohibition against Discrimination on the Labour Market and awarded the teacher a compensation corresponding to approx. nine months' salary. The educational institution brought the case before the Danish Western High Court, which set aside the decision of the Board of Equal Treatment.    
The Danish Board of Equal Treatment, representing the physical education teacher, subsequently appealed the case to the Danish Supreme Court. The parties agreed that the requirement of attendance at the open-house arrangement was based on objective grounds and was appropriate. Therefore, the Supreme Court only had to consider the question whether the requirement also was necessary.

Due to the general public importance of the case, the Danish Employee and Competence Agency and the Confederation of Danish Employers ("DA") acted as intervening third parties in support of the educational institution, and the Danish Trade Union Confederation ("FH") as intervening third party in support of the physical education teacher. The Supreme Court appointed seven judges for the case, instead of the normal five judges. 

The Supreme Court had regard to the fact that the open-house arrangement was important for the marketing of the educational institution. Also, regard was had to the fact that the educational institution had considered whether there were other teachers who were able to handle the teaching of physical educations and sports on that particular Saturday. However, this was not possible as no other teacher at the educational institution had the necessary professional qualifications in this respect.  

Therefore, the Supreme Court was satisfied that the order to the physical education teacher to report for three hours' work at the open-house arrangement was necessary in the sense of the Danish Act on Prohibition against Discrimination on the Labour Market. Consequently, it was not in contravention of the Act to dismiss the teacher due to his failure to report for work. Thus, the Supreme Court - like the High Court - set aside the decision of the Board of Equal Treatment.

Read the judgement of the High Court and the Supreme Court (in Danish)

Lise Høy Falsner, Attorney-at-Law, conducted the case for the educational institution and the Danish Employee and Competence Agency.

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