At the end of 2020, the High Court of Western Denmark ruled in a case concerning whether a day-care worker had been dismissed due to being overweight. The dismissal was possibly in violation of the Anti-Discrimination Act due to the employee’s severe overweight. After many years of work for the municipality in question, the day-care employee had been dismissed on the grounds that the number of children in the municipality had decreased.
The Anti-Discrimination Act
It follows from the Anti-Discrimination Act that an employer may not directly or indirectly discriminate against employees or applicants for vacant positions, cf. section 2 of the Act. The discrimination may not take place due to an employee’s or applicant’s disability, cf. section 1 of the Act. Obesity can be described as this after a specific assessment. This was clarified in a previous preliminary ruling of another case before the European Court of Justice back in 2014, in which the European Court of Justice concluded that obesity could constitute a disability. This is if the excess weight causes a limitation as a result of physical, mental or psychological injuries that may prevent the employee from fully and effectively participating on an equal footing with other employees. The restrictions must also be of longer duration. If the person discriminated against can demonstrate facts that give rise to a presumption that he or she has been discriminated against, the burden of proof shifts to the employer, who must prove that the discrimination has not occurred.
The High Court’s conclusion and reasoning
The High Court upheld the district court’s judgment. In other words, that the employee had not demonstrated facts that gave reason to assume that the employee had been discriminated against. The employee had thus not been dismissed due to overweight. Therefore, the dismissal was not in violation of the Anti-Discrimination Act. The district court justified this by the fact that the employee had not been prevented from performing his work on an equal footing with the others. And that the employer had not perceived the employee as disabled and that the termination was operationally justified.
What does the judgment show?
The judgment shows that obesity does not in itself constitute a disability under the Anti-Discrimination Act. However, being overweight may constitute a disability if it results in such a limitation on the part of the employee that he or she cannot perform his or her work fully and efficiently on an equal footing with his or her employees. In addition, the restriction must be of long duration. If you as an employer have employees whose overweight may constitute a disability, it is recommended that you are aware of this. The Anti-Discrimination Act imposes an obligation on the employer to implement adaptation measures, cf. section 2a of the Act. However, there is a limit to what an employer can be imposed. For example, an employer does not have an obligation to create completely new positions for the disabled person. If an employer intends to dismiss a severely overweight employee, the employer may advantageously prepare an assessment form before dismissing the employee in question. This can be used as evidence for the factual dismissal.
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