<strong>2015/28 Supreme Court follows up on ECJ&rsquo;s 2013 judgment in Ring and Werge (DK)</strong>

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

2015/22 Job applicant may lie when asked about spouse’s gender and political activity (FI)

The employer had no right to ask the job applicant about her spouse’s political activity, nor to require the applicant to tell the truth about her spouse’s gender. Consequently, the employer discriminated against the employee when it terminated the employment for serious breach of trust having discovered that the employee had lied about her spouse’s political activity and had not corrected the assumption that the spouse was of the same gender.

<strong>2015/22 Job applicant may lie when asked about spouse&rsquo;s gender and political activity (FI)</strong>

The employer had no right to ask the job applicant about her spouse’s political activity, nor to require the applicant to tell the truth about her spouse’s gender. Consequently, the employer discriminated against the employee when it terminated the employment for serious breach of trust having discovered that the employee had lied about her spouse’s political activity and had not corrected the assumption that the spouse was of the same gender.

2015/42 The dismissal of an employee for expressing negative views about a colleague’s homosexuality was both directly and indirectly discriminatory on the grounds of religion or belief (UK)

An Employment Tribunal has found that the employer of a Christian nursery worker both directly and indirectly discriminated against her on the grounds of her religion or belief when they dismissed her for expressing negative views about homosexuality to a lesbian colleague. Her claim for harassment was not upheld as the Employment Tribunal found that the employer’s conduct was not unwanted because the employee welcomed the disciplinary proceedings as an opportunity to express her religious beliefs in more detail.

<p><strong>2015/42 The dismissal of an employee for expressing negative views about a colleague&rsquo;s homosexuality was both directly and indirectly discriminatory on the grounds of religion or belief (UK)</strong></p>

An Employment Tribunal has found that the employer of a Christian nursery worker both directly and indirectly discriminated against her on the grounds of her religion or belief when they dismissed her for expressing negative views about homosexuality to a lesbian colleague. Her claim for harassment was not upheld as the Employment Tribunal found that the employer’s conduct was not unwanted because the employee welcomed the disciplinary proceedings as an opportunity to express her religious beliefs in more detail.

2015/21 Mental processes of those influencing the sole decision-maker not relevant to discrimination claim (UK)

In a recent age discrimination case, the Court of Appeal decided there was no need for an Employment Tribunal to consider the mental processes of other people influencing the sole decision-maker, regardless of the fact that his decision was informed by their opinions

<strong>2015/21 Mental processes of those influencing the sole decision-maker not relevant to discrimination claim (UK)</strong>

In a recent age discrimination case, the Court of Appeal decided there was no need for an Employment Tribunal to consider the mental processes of other people influencing the sole decision-maker, regardless of the fact that his decision was informed by their opinions

ECJ 14 April 2015, case C-527/13 (Lourdes Cachaldora Fernández – v - Instituto Nacional de la Seguridad Social (INSS) and Tesoreria General de la Seguridad Social (TGSS), Gender discrimination

Ms Cachaldora Fernández made contributions to Spain’s social security system during...

<strong>ECJ 14 April 2015, case C-527/13&nbsp;(Lourdes Cachaldora Fern&aacute;ndez &ndash; v - Instituto Nacional de la Seguridad Social (INSS) and Tesoreria General de la Seguridad Social (TGSS), Gender discrimination</strong>

Ms Cachaldora Fernández made contributions to Spain’s social security system during...

2015/52 Protection of pregnant employees – In-vitro fertilisation (GE)

An employee can benefit from special protection against dismissal from the moment an embryo is transferred into her body in-vitro