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High Court: Fatigue was a disability

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Legal news
calendar 11 October 2016
globus Denmark

It was unjustified to dismiss an employee who was unable to work full time due to a brain surgery. The employee suffered from long-term disabling fatigue and was therefore subject to the Danish Act on Prohibition against Discrimination on the Labour Market.

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 department noted that the employee still did not work on 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 on 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 to attend 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 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, 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 to 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 which 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 on what conditions long-term sickness is considered as a disability due to Danish Act on Prohibition against Discrimination on the Labour Market. In the specific case, 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 on the time of dismissal.

The ruling illustrates how difficult it is for companies to claim that they did not know about the employee’s disability when the facts point in that direction, including the character and duration of the sickness.

Previously, it has been assumed that long-term sickness had duration of at least a year. The new ruling serves notice that long-term sickness can last lees than a year depending on the character of the sickness. This applies whether or not there is a medical prognosis for the duration of the sickness.

IUNO recommends companies to find a solution conditioned to the specific case and to document all tested solutions. In the specific case, the company would possibly not have lost the case if they had looked into the possibilities for a reduced-hours job in cooperation with the municipality.

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 department noted that the employee still did not work on 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 on 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 to attend 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 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, 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 to 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 which 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 on what conditions long-term sickness is considered as a disability due to Danish Act on Prohibition against Discrimination on the Labour Market. In the specific case, 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 on the time of dismissal.

The ruling illustrates how difficult it is for companies to claim that they did not know about the employee’s disability when the facts point in that direction, including the character and duration of the sickness.

Previously, it has been assumed that long-term sickness had duration of at least a year. The new ruling serves notice that long-term sickness can last lees than a year depending on the character of the sickness. This applies whether or not there is a medical prognosis for the duration of the sickness.

IUNO recommends companies to find a solution conditioned to the specific case and to document all tested solutions. In the specific case, the company would possibly not have lost the case if they had looked into the possibilities for a reduced-hours job in cooperation with the municipality.

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Anders

Etgen Reitz

Partner

Søren

Hessellund Klausen

Partner

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The team

Alexandra

Jensen

Legal advisor

Anaïs

Kjærgaard Crouzet

Associate

Anders

Etgen Reitz

Partner

Caroline

Thorsen

Junior legal assistant

Cecillie

Groth Henriksen

Senior associate

Johan

Gustav Dein

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Julie

Meyer

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Kirsten

Astrup

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Maria

Kjærsgaard Juhl

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Sofie

Aurora Braut Bache

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Søren

Hessellund Klausen

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