Municipality not guilty of discrimination

Case no. 151/2015
Judgment delivered on 27 April 2016

Municipality of Hørsholm
vs.
FOA acting for A
Intervener for the appellant: Local Government Denmark (LGDK)

The municipality was forced to terminate a child-minder due to a decreasing number of children in the area and chose to terminate A. A had not worked as a child-minder for just over a year, among other things, because she had taken leave to care for her son who was diagnosed with Asperger's Syndrome at the time of her termination. The municipality had assessed that it would not be appropriate considering the needs of the children to move them from their current child-minder to one they did not know.

The Supreme Court found that A's son's Asperger's Syndrome was so severe that he was considered disabled within the meaning of the Act on Discrimination. The Supreme Court also found that the reason for terminating A was not her son's disability, but her long absence from her work, and thus held that A had not been subjected to direct discrimination, cf. section 1(2) of the Act on Discrimination. The Supreme Court found that the decision not to move the children to a child-minder they did not know was based on objective considerations, and that the choice of A was appropriate and necessary to meet these considerations. Accordingly, terminating A was also not indirect discrimination.

The Supreme Court did thus not need to consider whether section 1(3) of the Act on Discrimination covers a situation where an employee who is not disabled is terminated etc. due to his or her relationship with a disabled child. The Supreme Court then proceeded to comment on the relationship between section 1(3) and section 2a of the Act on Discrimination and the Employment Directive and the case law of the European Court of Justice. Considering that the issue of whether indirect discrimination due to an employee's relationship with a disabled child is covered by the Act on Discrimination was not important to the outcome of the case, there was no basis for referring questions to the EU Court of Justice.

The High Court had reached the opposite conclusion.