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Denied side businesses because of absence due to illness did not constitute direct discrimination

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calendar 21 February 2020
globus Sweden

Refusing an employee with a disability to conduct side businesses did not constitute direct discrimination, since the employer could prove that the refusals were based on neutral reasons (absence due to illness), rather than the disability as such, according to the Labor Court.

An employee who was diagnosed with chronic asthma had on three occasions in 2017 been denied conducting side business by her employer, Södersjukhuset. The employee therefore brought an action against the employer and claimed compensation for direct discrimination on the grounds of disability, as well as general damages for breach of the collective agreement. As a basis for her action, the employee stated that the employer has refused her to conduct the side businesses because she had asthma.

The employer objected to direct discrimination and argued that the decisions to refuse side businesses were due to that the employee participated in a rehabilitation process because of her high absence due to illness. According to internal guidelines, a high absence due to illness led to the initiation of a rehabilitation process, which the employer found would be hampered if the employee at the same time conducted side businesses.

According to the Discrimination Act, a person is directly discriminated when he or she is disadvantaged by being treated worse than somebody else would be treated in a comparable situation. In addition, the disadvantage must have a direct causal link to a ground of discrimination for direct discrimination to take place.

Direct discrimination requires direct causal link to the disability

Initially, the Labor Court found that the employee’s severe and chronic asthma is a disability under the Discrimination Act. This amongst other because the asthma had caused the employee to easily become ill, which had caused relatively extensive absence due to illness. The Labor Court also stated that the refusals of the employee’s wishes to conduct side business constituted disadvantages under the Discrimination Act. However, for the disadvantage to be directly discriminatory, there must be a direct causal link between the disadvantage and the disability. Here, the Labor Court found that the employer, with help from internal guidelines, had proven that a work-oriented rehabilitation process had been started because of the criterion ‘high absence due to illness’ and that the employer with respect to the rehabilitation could not approve simultaneous conduct of side businesses.

The Labor Court pointed out that there was no direct causal link between the refusals and the asthma, since the criterion ‘absence due to illness’ does not only strike people with asthma, which means that not only people with asthma can be subject to the guidelines and hence be refused to conduct side businesses. Although, the absence due to illness was partly a consequence of asthma that did not mean that asthma in itself was the reason for the refusals, the Labor Court stated. The Labor Court, therefore, found that direct discrimination had not taken place.  

The employee was, however, successful in claiming damages for breach of the collective agreement. The Labor Court found that the employer had acted in breach of the collective agreement by referring to an “ongoing rehabilitation process” in its third refusal of side businesses. The problem was that every planned rehabilitation measure had been taken at that time. According to the collective agreement, the employer must consider the possibility of side business in each individual case, which the employer had not done. The employer was therefore obligated to pay SEK 25,000 in general damages for one breach of the collective agreement.

IUNO’s opinion

It can be considered justified for an employer to want to refuse the simultaneous conduct of side business of an employee who is subject to rehabilitation because of absence due to illness. Employers should, however, bear in mind that the reason for the employee’s absence can be relatively easily assessed as a disability since the concept of disability is broad. This, in turn, increases the risk of discrimination if the side business is refused. In order to avoid a charge of discrimination, and perhaps above all indirect discrimination, it is an advantage if the employer can refer to guidelines that are justified, objectively acceptable and based on neutral criteria. IUNO, therefore, recommends that employers have such guidelines that – of course with respect to any applicable collective agreement – deal with side businesses, especially in relation to sick leave and rehabilitation.

[Labor Court Judgement no. 9/20]

An employee who was diagnosed with chronic asthma had on three occasions in 2017 been denied conducting side business by her employer, Södersjukhuset. The employee therefore brought an action against the employer and claimed compensation for direct discrimination on the grounds of disability, as well as general damages for breach of the collective agreement. As a basis for her action, the employee stated that the employer has refused her to conduct the side businesses because she had asthma.

The employer objected to direct discrimination and argued that the decisions to refuse side businesses were due to that the employee participated in a rehabilitation process because of her high absence due to illness. According to internal guidelines, a high absence due to illness led to the initiation of a rehabilitation process, which the employer found would be hampered if the employee at the same time conducted side businesses.

According to the Discrimination Act, a person is directly discriminated when he or she is disadvantaged by being treated worse than somebody else would be treated in a comparable situation. In addition, the disadvantage must have a direct causal link to a ground of discrimination for direct discrimination to take place.

Direct discrimination requires direct causal link to the disability

Initially, the Labor Court found that the employee’s severe and chronic asthma is a disability under the Discrimination Act. This amongst other because the asthma had caused the employee to easily become ill, which had caused relatively extensive absence due to illness. The Labor Court also stated that the refusals of the employee’s wishes to conduct side business constituted disadvantages under the Discrimination Act. However, for the disadvantage to be directly discriminatory, there must be a direct causal link between the disadvantage and the disability. Here, the Labor Court found that the employer, with help from internal guidelines, had proven that a work-oriented rehabilitation process had been started because of the criterion ‘high absence due to illness’ and that the employer with respect to the rehabilitation could not approve simultaneous conduct of side businesses.

The Labor Court pointed out that there was no direct causal link between the refusals and the asthma, since the criterion ‘absence due to illness’ does not only strike people with asthma, which means that not only people with asthma can be subject to the guidelines and hence be refused to conduct side businesses. Although, the absence due to illness was partly a consequence of asthma that did not mean that asthma in itself was the reason for the refusals, the Labor Court stated. The Labor Court, therefore, found that direct discrimination had not taken place.  

The employee was, however, successful in claiming damages for breach of the collective agreement. The Labor Court found that the employer had acted in breach of the collective agreement by referring to an “ongoing rehabilitation process” in its third refusal of side businesses. The problem was that every planned rehabilitation measure had been taken at that time. According to the collective agreement, the employer must consider the possibility of side business in each individual case, which the employer had not done. The employer was therefore obligated to pay SEK 25,000 in general damages for one breach of the collective agreement.

IUNO’s opinion

It can be considered justified for an employer to want to refuse the simultaneous conduct of side business of an employee who is subject to rehabilitation because of absence due to illness. Employers should, however, bear in mind that the reason for the employee’s absence can be relatively easily assessed as a disability since the concept of disability is broad. This, in turn, increases the risk of discrimination if the side business is refused. In order to avoid a charge of discrimination, and perhaps above all indirect discrimination, it is an advantage if the employer can refer to guidelines that are justified, objectively acceptable and based on neutral criteria. IUNO, therefore, recommends that employers have such guidelines that – of course with respect to any applicable collective agreement – deal with side businesses, especially in relation to sick leave and rehabilitation.

[Labor Court Judgement no. 9/20]

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Anders

Etgen Reitz

Partner

Franziska

Brüggemann

Associate

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