Reassignment of worker with disabilities

Case no. BS-19728/2024-HJR
Judgment delivered on 3 December 2024

The Board of Equal Treatment acting for A
vs.
Capital Region of Denmark

The case concerned a social worker who worked for the Capital Region of Denmark in a flexi-job at the Neuroscience Centre at Rigshospitalet with a working week of 20 hours. When she was returning to work in March 2018 after her maternity leave, she informed the Centre’s management that her health had deteriorated and that she would only be able to work 10 hours a week from now on. She was called in for a formal meeting with the management with a view to dismissal. After the meeting, she was invited to create a job agent on RegionH Match so that she would be notified of vacancies during the time until her possible dismissal. She applied for a social worker position with a working week of 10 hours at the Juliane Marie Centre at Rigshospitalet, but was not offered the job after an interview. On 31 May 2018, she was dismissed on the grounds that she was no longer available to perform the essential functions that her position as a social worker entailed, as the work could not be performed in just 10 or possibly 12 hours a week.

The parties agreed that the worker at the time of dismissal had a disability that was covered by the Act on Prohibition against Discrimination on the Labour Market (‘the Anti-Discrimination Act’), and that she had demonstrated factual circumstances that gave reason to presume that dismissal would be contrary to the Act. 
In the case before the Supreme Court, the parties also agreed that the Capital Region of Denmark did not have a duty to adapt the worker’s previous position by reducing the weekly working hours to 10. The issue was whether the Capital Region of Denmark prior to dismissing her had violated their accommodation duty by not reassigning her to another position, cf. the employer’s accommodation duty under section 2a of the Anti-Discrimination Act. In that connection, the Supreme Court had to determine the organisational scope of the accommodation duty and whether the worker should have been reassigned to the vacancy at the Juliane Marie Centre. If the accommodation duty had not been observed, the Supreme Court had to decide on the issue of compensation under section 7 of the Act.

Referring to, among other things, the judgement of the EU Court of Justice of 10 February 2022 in case C-485/20 (HR Rail), the Supreme Court stated that the accommodation duty under section 2a of the Anti-Discrimination Act entails that the employer – when it is not possible to make adjustments to the worker’s previous position – must investigate and possibly test the possibilities of reassigning the worker to a vacant position in the employer’s company or organisation with a view to retaining the worker in employment. The employer cannot merely let it be up to the worker to find and apply for vacancies in competition with other applicants. If there is a vacant position for which the worker is competent, capable and available, the employer must reassign the worker to that position, unless this is not a disproportionate burden for the employer. The general principle that a public employer must fill a vacant position after a public advertisement and with the best qualified applicant does not limit a public employer’s accommodation duty under section 2a of the Anti-Discrimination Act.  

In the case at hand, the Supreme Court found that it had to be assumed based on the evidence in the case that the Capital Region of Denmark prior to dismissing the worker had not investigated whether she could be reassigned to a vacant position within the entire Capital Region, but only to a vacant position as a social worker at the Neuroscience Centre. The Supreme Court was not satisfied that it would be a disproportionate burden to investigate and possibly test the possibilities of reassigning the worker within the entire Capital Region, Accordingly, the Capital Region of Denmark had not complied with its accommodation duty under section 2a of the Anti-Discrimination Act. It was thus not sufficient to leave the worker to find and apply for a vacancies by creating a job agent on RegionH Match.

The Supreme Court also held that, based on the content of the job advertisement and the information provided about the worker, she had to be regarded as being competent, capable and available for the vacant position as a social worker at the Juliane Marie Centre with a working week of 10 hours. The Capital Region of Denmark had failed to demonstrate that it would have been a disproportionate burden to reassign her to this position, and their failure to reassign her thus amounted to a violation of the accommodation duty under section 2a of the Anti-Discrimination Act.  

There was no basis for setting the compensation to less than nine months’ salary, as the Capital Region of Denmark had claimed.