The Danish Supreme Court has determined that an athletics association did comply with its duty to adapt under section 2 a of the Danish Employment Non-Discrimination Act in relation to a handicapped employee who had been awarded a flexible job as a swim coach. Among other things, the athletics association had investigated whether swimming lessons could be handled by others, and as such the subsequent termination was not contrary to the Non-Discrimination Act.

The case, which was referred to the High Court in the first instance, concerned an employee diagnosed with anxiety, recurring depression and ADHD. On 19 November 2018, the employee was granted a temporary flexible job with the athletics association Idræt for Sindet (IFS), assessing her as capable of working four hours per week as an athletics coordinator and with various needs for modified duties, including a fixed structure and a steady contact person. 

The granted subsidy for a temporary flexible job as an athletics coordinator was extended for the period 16 May 2019 - 15 May 2020. With this, the weekly working hours were increased to seven. 

On 6 November 2019, the employee received notice of termination because she would not take a life guard test, and because IFS could not accommodate the employee's need for a contact person to be present when she was at work.

The employee's trade union then initiated legal proceedings claiming compensation for wrongful termination contrary to section 7 of the Danish Employment Non-Discrimination Act (forskelsbehandlingsloven), cf. section 2 of the Act, and that the compensation would be calculated based on the salary as well as on the flexible job subsidy paid by the municipality. 

 

Danish High Court: Termination was not based on handicap
Initially, the High Court noted that IFS is a small association with many mentally vulnerable members and a modest budget. To this, the High Court noted that small associations as employers also must comply with the Non-Discrimination Act, but that the size of the employer must be considered in the assessment of whether the rules – such as compliance with the duty to adapt – have been observed. 

In continuation of this, the High Court considered the account by IFS's board members, explaining that the employee's employment contract would not have been extended on 16 May 2019, if at that time she had declared that she did not want to take a new life guard test. Her employment would not be extended, as she was the only employee available for the swimming lessons. IFS also told the employee that there were no resources for providing a contact person when she was working. 

The High Court found that 1) it had not been possible for IFS to accommodate her need to be able to call on a contact person with the association when she was working, 2) the employee had not been in a position to demand that the association would pay for a life guard, or that 3) the association would drop its swimming lessons for a period of time. On this basis, the High Court concluded that IFS had proved that the association had not acted contrary to sections 2 and 2 a of the Non-Discrimination Act by terminating the employee, as she was not competent, suited or available.

The Court thus found for IFS in the claim for payment of compensation pursuant to the Non-Discrimination Act.

Danish Supreme Court: Employer had met its duty to adapt 
The trade union representing the employee appealed the decision to the Supreme Court, claiming compensation for termination contrary to the Non-Discrimination Act. 

Initially, the Supreme Court noted that under section 2 a of the Non-Discrimination Act, employers must make such arrangements as are appropriate relative to the specific needs allowing a handicapped person access to perform a job, unless the employer with such arrangements is encumbered with a disproportional burden that is not sufficiently eased by public measures. 

In continuation of this, following the statements made, the Supreme Court found that being available to handle the swimming lessons was a material function in A's job as an athletics coordinator with IFS. The Supreme Court also considered the fact that her needs for modified duties were discussed by IFS's board of directors and that the association considered and investigated several possibilities, including the possibility of others handling the swimming lessons.

Against this background, the Supreme Court found that IFS was not obligated to conduct further considerations or investigations as to appropriate arrangements that would have made it possible to keep the employee, and the Court found that it would not have been possible to relieve the employee of the lessons or to provide a contact person, as the character, size and budget of the association did not allow that. 

Accordingly, the Supreme Court upheld the decision of the High Court.