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22 January 2020
A district court has confirmed a 2018 Equal Treatment Board finding that the dismissal of a female wheelchair user who had just returned from maternity leave contravened the Anti-discrimination Act and the Act on Equal Treatment of Men and Women.
Under the Anti-discrimination Act, an employee with a disability enjoys special protection against dismissal. It further follows from the Act on Equal Treatment of Men and Women that, in connection with a dismissal, an employer cannot rely on an employee's pregnancy or childbirth-related leave. A reverse burden of proof applies during pregnancy and childbirth-related leave and continues after the expiry of such leave if it is shown that a decision to dismiss the employee was made during this leave.
A female teacher who was paralysed from the navel down and therefore a wheelchair user was dismissed shortly after she returned from childbirth-related leave. The termination was based on the educational institution's financial situation.
The employee complained to the Equal Treatment Board, which found that the dismissal was in violation of both the Anti-discrimination Act and the Act on Equal Treatment of Men and Women. The case has now been heard by a district court.
Initially, the district court found that the decision to dismiss the employee had been made while she was on childbirth-related leave and that the reverse burden of proof under the Act on Equal Treatment of Men and Women therefore applied. The district court paid special attention to information in a memo prepared during a financial meeting held during the employee's leave.
The court found that the educational institution had not discharged the burden of proof that the dismissal was unrelated to the employee's childbirth-related leave as it had referred only to its financial problems and had not stated why it was necessary to dismiss this particular employee who was on childbirth-related leave.
In light of the explanations given, the court found that the dismissal had also been based on the fact that, because of her disability, the employee had less flexibility to teach outside the usual teaching place. The court also emphasised that a few months after dismissing the employee, the educational institution had hired another employee's daughter and that a third unrelated employee, who had retired, had been employed as a substitute.
Therefore, the court concluded that the employee had identified facts which had led to the presumption of discrimination on the grounds of disability, and that the educational institution had not given the reasons why it was this specific employee that should be made redundant.
Accordingly, the district court awarded the employee total compensation under both legal bases of approximately 12 months' salary.
The decision emphasises the fact that employers implementing redundancies for operational reasons for employees with disabilities should always be able to explain in detail precisely why it is the employee with the disability who is a candidate for redundancy.
If it becomes clear that the decisive criterion could constitute indirect discrimination against employees with disabilities, the employer must demonstrate on a case-by-case basis that the criterion was objectively justified and that the means to achieve that objective were appropriate and necessary.
Notably, if an employee is dismissed immediately after childbirth-related leave, the question of whether the decision to dismiss that employee was taken during the employee's leave will be crucial as, if so, the burden of proof will be reversed.
For further information on this topic please contact Yvonne Frederiksen at Norrbom Vinding by telephone (+43 35 25 3940) or email (firstname.lastname@example.org). The Norrbom Vinding website can be accessed at norrbomvinding.com.
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