2015/28 Supreme Court follows up on ECJ’s 2013 judgment in Ring and Werge (DK)
On 23 June 2015, the Danish Supreme Court followed up on the judgment delivered by the Court of Justice of the EU (the ‘ECJ’) in joined cases C-335/11 (Ring) and C-337/11 (Werge). The issue was whether section 5(2) of the Danish Salaried Employees Act (‘DSE’) was compatible with Equal Treatment Directive 2000/78 (the ‘Directive’). Section 5(2) DSE allows an employer, in certain cases, to dismiss an employee, who has been absent from work for medical reasons for 120 days within a 12 month period, with a reduced period of notice. Can an employer apply this provision even where the employee’s absence was on account of disability? The ECJ replied affirmatively, but only if section 5(2) is objectively justified, and even then only if the employee’s absence is not attributable to failure by the employer to make reasonable adjustments. The Danish Supreme Court has now, in the national proceedings initiated by Ms Werge, found section 5(2) DSE to be objectively justified. Given that Ms Werge’s employer was unaware that her absence was caused by a disability (given that she proved that it was a disability but the employer was unaware of the relevant facts), it had no reason to make adjustments
Højesteret (Danish Supreme Court), 2015-06-23
