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Mother of disabled child awarded compensation

November 2009 - Employment. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

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Also the parents of a disabled child are protected against discrimination if they provide the main share of the child’s care.

Last year, the European Court of Justice ruled in a landmark case that the mother of a disabled child is protected against discrimination under the EU Employment Directive. The Court in Sønderborg has now applied the ECJ's ruling in the first judgment on this issue in Denmark.

The case concerned an office assistant who lived alone with her son, suspected by doctors to suffer from ADHD. As a result of the child's condition, she had to take time off for various medical checks from time to time. When the child was given his final diagnosis - a serious disability - the employer encouraged the mother to take sick leave. She did just that, and was then given notice.

Dismissal was discrimination

The mother believed that she had been discriminated against and in the subsequent proceedings she claimed that she had been dismissed because of her disabled child. She therefore claimed compensation under the Danish Anti-Discrimination Act. The employer disagreed, arguing that she had been dismissed because there was a shortage of work.

The Court found for the mother, holding that she had proved the existence of a number of facts that gave rise to a presumption that the reason for her dismissal was her son's disability. In that connection, regard was had to the fact that the employer only mentioned to her after the dismissal that a loss of turnover could mean that she would be dismissed. Weight was also given to the close proximity in time between the son's diagnosis and her dismissal. The employer being unable to discharge the burden of proof which had then shifted, the Court held that the loss of turnover given by the employer as the reason for her dismissal was an after-the-fact rationalisation.

 

The judgment has been appealed to the High Court.

 

Norrbom Vinding notes: 

  • that the judgment shows that the prohibition in the Danish Anti-Discrimination Act against discrimination on grounds of disability extends to the parents of a disabled child so long as they provide the main share of the care needed by the child; and

  • that the judgment is in line with ECJ case law, as the ECJ ruled last year that the EU Employment Directive applied in a similar case.  

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