The Danish Western High Court sets aside the decision of the Danish Board of Equal Treatment in a case about religion and belief
On 23 July 2021, the Danish Western High Court announced its decision in a leading case that it was not in contravention of the prohibition against discrimination on the grounds of religion and belief when an educational institution had ordered a physical education teacher to be at work on a Saturday. Plesner assisted the educational institution in the case.
The case involved a physical education teacher who was a follower of the Seventh-day Adventist Church. According to the Seventh-day Adventist Church, Saturday must be observed as a Sabbath day, which is a day of rest. The physical education teacher was asked to attend an open-house arrangement taking place on a Saturday, where he was to present the subject of physical education and sports, but he refused to attend the arrangement on the grounds that according to his religious conviction it would be in conflict with his belief to work on a Saturday. However, the educational institution maintained the order that the teacher had to report for work, due to the fact that the subject of physical education and sports had been introduced on a permanent basis in the study programme and that he was the only special-subject teacher of physical education and sports at the school. When the physical education teacher failed to appear on the day in question, he was dismissed as a result of his non-attendance.
The matter was taken to the Danish Board of Equal Treatment where the dismissal was deemed as a violation of the provisions of the Danish Act on Prohibition against Discrimination on the Labour Market. The Board found that the requirement of attendance could be regarded as being based on objective grounds and also as appropriate, but the burden of proof that it also could be regarded as necessary had not been satisfied. The physical education teacher was awarded a compensation corresponding to approx. nine months' salary.
The educational institution brought the case before the Danish Western High Court. During the case, both parties agreed that the requirement of attendance was based on objective grounds and was appropriate. Therefore, the case only concerned the question whether the requirement of attendance was necessary.
The Western High Court dismissed the argument of the Board of Equal Treatment that paragraphs 42 and 43 of the judgement of the European Court of Justice of 14 March 2017 (Achbita case) regarding a company's prohibition against headscarves should lead to the requirement of being "necessary" under Section 1 (3) of the Danish Act on Prohibition against Discrimination on the Labour Market to be understood as "strictly necessary" in this case.
In principle, all employees were to participate in the event, and it was only possible to take time off after individual agreement - and only if the directors of the institution found it consistent with the task management. At previous arrangements, the educational institution had been able to exempt the physical education teacher from duty when he asked for time off because of his religious conviction. This was, inter alia, due to the fact that the discipline of physical education and sports was only offered as a pilot scheme and had therefore not been presented at previous open-house arrangements.
The other teachers and the directors were busy with other tasks in connection with the event and none of them had the necessary professional qualifications to present the subject of physical education and sports. Therefore, no other teachers were able to handle the presentation and teaching of physical education and sports. According to the directors, it was necessary that it should actually be a physical education teacher who presented the subject, partly in order to guarantee a professional standard and partly to provide adequate answers to the participants' questions regarding the explicit contents and requirements of the subject.
The High Court found that in connection with the organisation of the arrangement with the contents in question, the directors of the institution must be allowed a certain discretion with regard to the assessment of the professional standard that is necessary to present the school.
Accordingly, bearing in mind that the institution also had reduced its requirement of the teacher's work to only three hours on the day in question, the High Court found - based on an overall assessment - that the educational institution had satisfied the burden of proof that the requirement of attendance was necessary and therefore ruled in favour of the institution.
The judgement can be requested from Lise Høy Falsner, Attorney-at-Law.