A bank clerk was on sick leave for two months due to a brain surgery. Hereafter, she gradually returned to work, starting with 2-3 hours a week, increasing to 18 hours a week after six months. She was still unable to work full time because of a diagnosed disabling fatigue.
Every second week, the bank and the bank clerk held follow-up meetings for the purpose of getting the bank clerk back on full time. However, the bank clerk informed the bank that no experts knew when she would be well again. In addition, the bank received a memo from a brain damage centre stating that the employee suffered from serious fatigue due to her brain surgery. According to the memo, the fatigue had a different character than regular fatigue which made it hard to specify when the employee would be able to work full time.
After nine months of sick leave, the bank and the bank clerk held a follow-up meeting. During the meeting, the head of the department noted that the employee still did not work a full time, that she was invisible in the department and that no one in the department really knew her.
Hereafter, the bank clerk reported sick full-time. Shortly after, she was dismissed due to her sickness absence and the fact that the bank did not find that she was capable of attending to her position.
Dismissal was unlawful
The Danish High Court determined that the dismissal was in violation of the protection of disability under the Danish Act on Prohibition against Discrimination on the Labour Market as the bank clerk’s disabling fatigue was long-term.
According to the High Court, the bank should have known that the employee’s long-term sick note was a disability within the meaning of the law. Additionally, the High Court took into account that the bank clerk was competent and qualified to carry out her work according to the displayed performance reviews. Therefore, the bank was obligated to undertake appropriate measures to help the bank clerk carry out her work.
However, the bank refused the bank clerk’s suggestion of a reduced-hours job without reviewing the options. Neither did the bank offer the bank clerk a part-time position that she would be able to manage.
The employee was entitled to compensation corresponding to 12 months’ salary.
iuno’s opinion
The ruling helps to clarify under what conditions long-term sickness is considered a disability due to the Danish Act on Prohibition against Discrimination on the Labour Market. In the specific case, the High Court determined that the bank should have known that the employee was disabled even though the prognosis of the duration of the sickness was not available at the time of dismissal.
The ruling illustrates how difficult it is for companies to claim that they did not know about an employee’s disability when the facts, including the character and duration of the sickness, point in that direction.
Previously, it was assumed that long-term sickness lasted at least a year. The new ruling serves notice that, depending on the character of the sickness, it can last less than a year. This applies whether or not there is a medical prognosis for the duration of the sickness.
iuno recommends companies find a solution conditioned to the specific case and document all tested solutions. In the specific case, the company might not have lost the case if it had looked into the possibilities for a reduced-hours job in cooperation with the municipality.