• • In 2019, the Danish Board of Equal Treatment had upheld an Adventist teacher’s claim that he had been illegally fired for not working on his Sabbath.
  • In 2021, the Danish Western High Court found that it had been necessary for the school to require the PE teacher to work at the Saturday event. Consequently, the Court ruled the school had not violated the Anti-Discrimination Act.
  • The case has been appealed to the Supreme Court.

04 January 2022 | The Western High Court in Denmark has ruled that a school’s decision to dismiss a physical education (PE) teacher who refused to work on a Saturday due to his religion was not in violation of the Anti-Discrimination Act, reported Norrbom Vinding, a labor and employment law firm, on Dec. 15, 2021.

In 2019, a Seventh-day Adventist teacher, who specialises in physical education, had been asked to attend and participate in an open house event to promote the school. The institution felt it was of vital importance to present its physical education degree. As he was the only teacher specializing in this area, they demanded his attendance despite being fully aware of his religious convictions, reported the Trans-European Division.

The teacher, who was not named for legal reasons, said this situation had never been a problem before, as he had always been able to find a replacement for the event. On this occasion the Adventist teacher had prepared a detailed written description for a substitute teacher to follow and had also instructed senior students that were to participate and help at the event.

However, the school fired the teacher for not attending the “open house” event on Saturday.

The Danish Board of Equal Treatment later found the Adventist teacher’s dismissal contrary to the Anti-Discrimination Act.

Denmark’s Anti-Discrimination Act prohibits both direct and indirect discrimination. Direct discrimination occurs when an employer fails to hire someone or dismisses an employee on the grounds that he or she has a particular ethnicity, colour, religion or disability.

Indirect discrimination happens if an employer makes demands that are not relevant in relation to the job to be filled, and the demands negatively affect a particular group, according to Workplace Denmark, a government website for employees.

In order to avoid the charge of discrimination, an employer has to prove their demands were objectively justifiable as appropriate and necessary.

The school disagreed with the Board’s decision and took the case to the Western High Court.

The Court found the requirement to attend work on a Saturday constituted indirect discrimination on grounds of religion, as it placed individuals with the same religion as the PE teacher at a disadvantage compared with others.

However, the Court considered whether the requirement to attend work on Saturday was 1.) objectively justified by a legitimate aim; and 2.) whether the means of achieving that aim were appropriate and necessary.

It was uncontested during the proceedings that the requirement for the PE teacher to work at the event being held on a Saturday was appropriate and objectively justified by a legitimate aim.

Consequently, the Court had to decide whether the requirement was necessary, including how such a condition should be further interpreted.

Among other things, the PE teacher contended that according to European Court of Justice (ECJ) case law on the EU directive that establishes a general framework for equal treatment of employees, any difference in treatment must be “strictly necessary.”

However, the Western High Court stated that ECJ case law does not establish a condition that indirect discrimination must be “strictly necessary” in order to be lawful.

In its assessment, the Court considered that the school had a special need for presenting PE as part of a new study program at the school and that the teacher was the school’s only PE teacher.

Also, the Court stated that the school’s management must be allowed a certain degree of discretion to determine the level of professionalism that it wished to present at the event.

The school had decided that it was not possible to use substitute teachers at the school to replace the absent PE teacher. Therefore, the school had to hire two external PE teachers – which incurred fees – to present the course at the necessary professional level.

Consequently, the Court found that it had been necessary for the school to require the PE teacher to work at the Saturday event and the requirement was, therefore, not in breach of the Anti-Discrimination Act.

The Court decided the teacher’s dismissal was not contrary to the Anti-Discrimination Act, as it could be reasonably justified based on his failure to attend the event.

Based on the specific circumstances of this case, the Court found that the employer had discharged the burden of proving that it was necessary to require the PE teacher to attend the event. Accordingly, the employer had not acted contrary to the prohibition of discrimination on grounds of religion.

The case has been appealed to the Supreme Court.

(Photo: The Danish Western High Court upheld the firing of an Adventist teacher for Sabbath observance in July 2021. Photo via Pixabay.)

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