Refusing Saturday work for religious reasons: a new Danish ruling

According to the Danish Anti-Discrimination Act, a criterion or practice that may seem neutral can constitute indirect discrimination on grounds of religion if it would put a person of a particular religion or belief at a disadvantage compared with other persons, unless the provision, condition or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

The question in this case was whether a school was justified in dismissing a physical education teacher, citing his refusal to attend work on a Saturday at an open day event where he, in his role as PE teacher, was tasked with showing parents and children how the PE course was conducted at the school. The Board of Equal Treatment had found the dismissal contrary to the Anti-Discrimination Act, but the school disagreed and took the case to the Western High Court.

The High Court found that, as a starting point, the requirement to attend work on a Saturday constituted indirect discrimination on grounds of religion, as it placed individuals with the same religion as the PE teacher (Seventh-Day Adventism) at a disadvantage compared to others. The question was therefore whether the requirement was objectively justified by a legitimate aim and whether the means of achieving that aim were appropriate and necessary.

It was uncontested during the proceedings that the requirement for the PE teacher to attend work on the Saturday of the open day event was objectively justified by a legitimate aim as well as appropriate. Consequently, the question to be decided by the High Court was whether the requirement was necessary, including how this condition should be further interpreted.

Among other things, the PE teacher contended that according to ECJ case law on the EU directive establishing a general framework for equal treatment in employment and occupation, any difference of treatment must be ‘strictly necessary’. However, the High Court stated that ECJ case law does not establish a condition that indirect discrimination must be ‘strictly necessary’ in order to be lawful.

In its assessment, the High Court took into account that the school had a special need for presenting PE as a course in a new study programme at the school and that the PE teacher was in fact the only PE teacher at the school. The High Court further stated that the management must be allowed a certain degree of discretion in the assessment of the professional level needed in the presentation of the school at the event.

The school had assessed that it was not possible to have any substitute teachers at the school replace the PE teacher. Based on this, it had been necessary for the school to hire two external PE teachers, in return for a fee, to present the course at the necessary professional level at the open house event.

Accordingly, the High Court found that it had been necessary for the school to require the PE teacher to work on the Saturday of the open day event and the requirement was, thus, not in breach of the Anti-Discrimination Act. The subsequent dismissal was therefore reasonably justified by the PE teacher’s non-attendance and was not contrary to the Anti-Discrimination Act either.

The case has been appealed to the Supreme Court.

• An employee is not necessarily entitled to be relieved of their working duties on certain days even though performance of work on such days may be contrary to the employee’s religion.
• It may, however, constitute unlawful indirect discrimination if the employee, on that basis, is put at a disadvantage compared with other individuals (who do not have the same religious belief).
• The High Court stated that the Anti-Discrimination Act should not be interpreted in a way meaning that the requirement of attendance on the relevant days must be ‘strictly necessary’ to be lawful.
• The High Court further specified that the employer must be allowed a certain degree of discretion when assessing what must be regarded as necessary, which in this case involved an assessment of the professional standard necessary when presenting the school.
• Based on the specific circumstances of the case, the High Court found that the employer had discharged the burden of proving that it was necessary to require the PE teacher to attend the open house event and, accordingly, that the employer had not acted contrary to the prohibition of discrimination on grounds of religion.

This article was written by our colleagues from Norrbom Vinding, the danish Ius Laboris member.