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Compliance Denmark Individualarbeitsrecht Neueste Beiträge

Danish high court takes a strict line on redeployment for disabled person

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The Supreme Court has ruled that a disabled employee should have been considered for redeployment to another vacant position outside their place of work. 

Under the Anti-Discrimination Act, employers must take appropriate measures to give employees with disabilities continued access to employment, unless this imposes a disproportionate burden on the employer. It follows from recent case law of the European Court of Justice that such measures may include redeployment to another vacant position that the employee would be competent, suitable and available to fill. 

The question before the Supreme Court in this case was whether the employer was required to consider vacant positions outside the employee’s organisational place of work and whether, in that situation, there was an obligation to redeploy the employee with a disability to a vacant position elsewhere even if the employee was not the most qualified candidate. 

The case concerned a social worker who was employed in a reduced-hours job for 20 hours a week by the Capital Region of Denmark, working at the Neuroscience Centre at Rigshospitalet. As the social worker’s health condition deteriorated, she requested that the working hours in the position be reduced to ten hours per week. The Neuroscience Centre concluded that this was incompatible with its operations and therefore initiated a dismissal procedure. 

Prior to the dismissal, it was established that there were no other relevant vacant positions at the Neuroscience Centre, and the social worker was offered to register in RegionH Match, which is a job portal normally used in connection with dismissals for operational reasons in the Capital Region of Denmark. If an employee is registered in RegionH Match they will be notified of relevant vacant positions throughout the Region, and if the employee applies for such a position they will have priority access to a job interview. 

The social worker was invited to an interview for a vacant position as a social worker for ten hours a week at another centre at Rigshospitalet, the Juliane Marie Centre (which, like the Neuroscience Centre, constitutes an independent employing authority), but was not offered employment. Instead, the Juliane Marie Centre hired a candidate with more experience in local government and who would be able to increase their working hours in the long term, taking into consideration that the Juliane Marie Centre had been promised allocation of additional social worker hours. 

The social worker’s trade union then filed a complaint to the Board of Equal Treatment. The Board found that the Capital Region of Denmark had not proven that the social worker was no longer available to perform the essential functions of the position as social worker at the Neuroscience Centre and, on this basis, awarded the social worker compensation equivalent to nine months’ salary. The case was then brought to the district court, which arrived at the same result in its ruling. 

The Capital Region of Denmark appealed the district court ruling, and the appeals court overturned that ruling, finding that the Region had established that the social worker was not competent, suitable and available to perform the essential functions of the position as social worker at the Neuroscience Centre. The appeals court also found that the social worker was not the most qualified candidate for the vacant position at the Juliane Marie Centre, and that the Region had made sufficient efforts to redeploy her. 

Obligation to redeploy

The Board of Equal Treatment appealed the part of the case that concerned the issue of redeployment to the Supreme Court. The Supreme Court case thus centred on the question of whether the efforts of the Capital Region of Denmark to redeploy the social worker satisfied the obligation in the Anti-Discrimination Act to take appropriate measures. 

In this regard, the Capital Region of Denmark argued that the obligation to redeploy had to be limited to the Neuroscience Centre, which is an organisationally separate unit that employed around 1,700 employees at the time, with its own executive board, independent management and budget responsibility as well as independent authority to recruit and dismiss employees. The Region further argued that an obligation to redeploy within the entire employment area and, thus, throughout the Capital Region of Denmark, which has more than 40,000 employees, must be considered a disproportionate burden. 

In any event, the Capital Region argued that the obligation to redeploy had to be considered fulfilled in light of the fact that the social worker had been considered for the only relevant vacant position in the entire Capital Region of Denmark, which she was not competent, suitable and available to fulfil due to her skills as well as her inability to increase her working hours. 

Obligation to consider redeployment

The Supreme Court initially stated that the employer’s duty to provide reasonable accommodation means that the employer cannot simply refer an employee with a disability to find and apply for vacant positions in competition with other external candidates. It must instead explore the possibility of redeploying the employee to another vacant position that the employee is competent, suitable and available to fulfil, unless this would impose a disproportionate burden on the employer. 

The general legal principle that public-sector employers must fill vacant positions by public advertisement and with the most qualified candidates does not limit the obligation to redeploy under the Anti-Discrimination Act. 

Obligation to seek redeployment broadly in the organisation

The Supreme Court also held that there is no basis in legislation or in ECJ case law for an employer to limit the organisational scope of the duty to investigate and explore the possibility of redeploying employees with disabilities. 

In relation to the specific case, the Supreme Court found that the Capital Region of Denmark had not established that it would constitute a disproportionate burden to explore the possibility of redeploying the social worker to a vacant position throughout the entire Region. 

As regards the specific vacant position at the Juliane Marie Centre, the Supreme Court found that the Capital Region of Denmark had not demonstrated that it would constitute a disproportionate burden to redeploy the social worker to this position. 

Accordingly, there had been a breach of the obligation to provide reasonable accommodation under the Anti-Discrimination Act, and the district court’s ruling awarding the social worker a compensation of nine months’ salary was thus upheld.

Takeaway for Employers

In the public-sector labour market, there is a range of decisions from the industrial tribunal system establishing that the obligation to redeploy in the event of dismissals for operational reasons generally only extends to the part of the employing authority that has the authority to recruit and dismiss (e.g. individual government agencies, faculties, hospitals) and not the entire employment area (in this case the entire Capital Region of Denmark). With its judgment, the Supreme Court has established that this principle does not apply to redeployment of employees with disabilities as part of the employer’s fulfilment of the obligation to provide reasonable accommodation under the Anti-Discrimination Act, unless in the specific situation it would impose a disproportionate burden on the employer to extend the obligation to redeploy to the entire employment area. 

The judgment also establishes that the general principle of a public-sector employer filling a vacant position by public advertisement and with the most qualified candidate does not limit the obligation to redeploy in relation to employees with disabilities. 

Furthermore, the ruling confirms the case law of the ECJ according to which the obligation to redeploy employees with disabilities will be conditional on there being at least one vacant position for which the employee would be competent, suitable and available to fulfil the essential functions, and that the redeployment must not constitute a disproportionate burden for the employer. 

Ius Laboris




Ius Laboris is a leading international employment law practice combining the world’s leading employment, labour and pension firms. Our role lies in sharing insights and helping clients to navigate the world of labour and employment law successfully.
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