Annual report for 2023 from the Danish Board of Equal Treatment

In 2023, the Board experienced a rising influx of cases, consistent with previous years. The majority of the cases handled by the Board in 2023 involved discrimination based on disability either within or outside the labour market.

Discrimination based on disability

One case reviewed by the Board involved a maritime pilot who was dismissed following absence from work due to hospitalisation for severe hypertension. It was determined that the employee, who had been employed for several years, had a disability and should be permanently exempted from working nights.

The employee was called in for a disciplinary meeting where he was informed that his inability to work nights was a financial strain on the employer. He was offered an on-call position as an assistant maritime pilot where he could elect not to work night shifts. However, one month later, he was dismissed on the grounds that accommodating his need for exemption from night work was operationally unfeasible.

The Board ruled that the dismissal constituted unlawful discrimination under the Danish Discrimination Act. The Board highlighted that the employer had failed to prove that adjusting the employee's role to accommodate his disability would impose a disproportionately large burden on the employer. Additionally, there was insufficient evidence to suggest that it was impossible to cover the night shifts that the employee could not work. The Board found that the employer did not fulfil its duty to adapt the working conditions to the needs of an employee with a disability. As a result, the employee was awarded a compensation equivalent to 12 months' salary, taking into account the length of the employment and other circumstances.

Harassment

The annual report also includes descriptions of cases concerning behaviour identified as harassment. One such case reviewed by the Board involved a woman who was dismissed while pregnant. The woman informed the Board that during a meeting, her employer had remarked that he hoped that no more employees were pregnant. At the time, the woman was in fact pregnant and had just returned from maternity leave with another child. In a dissenting opinion, the Board concluded that the woman had provided sufficient evidence to presume that she was subjected to harassment.

The Board emphasised that the employer's remark was likely to create an intimidating and offensive environment for the woman, regardless of whether it was intended as a joke. It was also irrelevant that the employer was unaware of the employee's pregnancy at the time of the remark. As the employer could not prove that the principle of equal treatment had not been violated, the woman was awarded a compensation of DKK 10,000.

The Board also heard a case involving a man who received three warnings on his last workday before starting parental leave. The warnings were issued for spending excessive time on non-work-related conversations, having a generally unsatisfactory work attitude, and for poor work performance, including a low billing ratio.

The Board determined that the employee had presented sufficient evidence to suggest that he had been discriminated based on his gender. While the employer provided evidence that the employee's billing ratio had in fact been addressed during a performance review, the employer could not prove that the other issues mentioned in the warnings had been raised previously. The employee's harassment complaint was upheld, and he was awarded a compensation of DKK 20,000. The Board emphasised that the timing of the warnings, just before the commencement of the employee's parental leave, along with the scope, subject-matter, and wording of the warnings, was likely to create an intimidating and offensive environment.

Dismissal or rejection of employment

The Board reviewed a case involving a woman whose conditional employment agreement was annulled following her information to the future employer about her pregnancy. The position, as manager of a crisis centre, was contingent upon the centre receiving approval from the social supervisory authority. 

After signing the conditional employment agreement, the woman found out that she was pregnant. She immediately informed the future employer hereof, upon which the company annulled the employment agreement.

The Board ruled that the annulment of the conditional employment agreement was not justified, as the annulment was based on circumstances unrelated to the social supervisory authority's potential rejection of approval of the crisis centre. Therefore, the annulment of the conditional employment was considered as a dismissal, and the complaint was heard as a dismissal related to pregnancy.

Since the Board found that the crisis centre failed to prove that the woman's pregnancy was not a factor in its decision, the Board ruled in her favour, awarding her compensation equivalent to six months' salary.

New practice on acquiescence and time-barring

On 1 March 2023, the Board of Equal Treatment addressed the issue of acquiescence leading to the forfeiture of rights and time-barring of claims. The Board clarified that no deadline applies to lodging a complaint within the Board's scope, meaning that a complainant's case of illegal discrimination can be heard regardless of how much time has passed. 

The Board identified 38 cases where claimants were unsuccessful in having their case heard due to forfeiture of rights due to acquiescence, and 13 cases that were dismissed due to time-barring. Claimants were informed about the possibility of requesting a resumption of their cases. 

Regardless of the above, the Board still emphasizes that acquiescence leading to the forfeiture of rights and time-barring can affect the claimant's entitlement to compensation. However, just not the entitlement to have their case heard before the Board. 

Increased number of cases involving bullying

In addition to the above, though not mentioned in the annual report, we are seeing an increasing focus on cases involving workplace bullying. Bullying can occur between colleagues, towards subordinates, and even towards management, and it can have serious consequences. Research shows a link between workplace bullying and illness-related absences. It is therefore crucial for employers to take proactive steps to prevent and address bullying. By implementing transparent policies and fostering open dialogue, it is possible to create a healthy work environment where conflicts and problems are solved before they escalate.

Read more in the National Working Environment Authority's guidance on bullying and other abuse (in Danish)

Do you want to know more?

Read the Board of Equal Treatment's Annual Report 2023 – the Appeals Board (in Danish)

All decisions of the Board from 2023 are available at Retsinformation.dk (in Danish)

You can also search for the decisions on the website of the Board of Equal Treatment at www.ligebehandlingsnævnet.dk (in Danish)