Discrimination

By Pia Skovgaard Hansen, Mia Boesen, Riikka Heinonen, Simon Soderholm

03-2019

Denmark

In Denmark, the various rules regarding discrimination are implemented on the basis of Directives from EU with the purpose to ensure, that all employees are treated equally in all aspects of the employment.

This article focus on the Danish Act regarding Discriminatory Treatment (in Danish: "Forskelsbehandlingsloven") (in the following referred to as the "Act") which is an act related to discrimination on various and outlined elements.

The criteria and burden of proof

Under Danish law, it is not allowed to discriminate neither on direct or indirect basis in relation to race, skin collar, religion or belief, political opinion, sexual orientation, age, handicap or national, social or ethnical origin. This list is exhaustive.

Direct discriminatory treatment exists, when a person because of race, skin collar, religion or belief, political opinion, sexual orientation, age, handicap or national, social or ethnical origin is treated worse than others in a similar situation. Indirect discriminatory treatment exists, when a criteria, practice or regulation, which seems neutral, will put a person in a worse position than others in a similar situation and this is based on the before-mentioned criteria. However, this is unless the treatment objectively is reasoned in fair and proportional grounds (i.e. is appropriate and necessary).

Also harassment and instructions to discriminate because of the mentioned criteria is considered as discrimination under the Act.

The burden of proof is divided between the employer and the employee, which means that if the employee proves factual circumstances that supports that the Act has been violated, the employer must proof that this is not the case.

The sanction of violating the Act is a compensation payment. The compensation level varies from case to case and is depending on the severity and the seniority of the employee. In general the employer can expect to be met with a claim of 6, 9 or 12 months' salary if the seniority of the employee is respectively less than 1.5 years, between 1.5 and 4-8 years and more than 4-8 years. These are, however, only guidelines and can be higher in gross cases of discrimination.

Different grounds of discrimination

In Denmark, especially the criteria 'handicap' and 'age' have been subject to discussions and thus many cases with the courts and the Board of Equal Treatment.

Handicap:

The EU-Court has -on the basis of the "Ring and Werge" case   interpreted a "handicap" as a condition, caused by a medical diagnosed curable or incurable disease, when the disease entails limitations because of i.e. physical, mental or psychical damages, which can prevent the employee from participating in work the same way as other employees and that the disease is a long-term condition. Thus, especially the duration of the sickness is relevant when assessing whether it could be considered as a handicap meaning that a disease that – at some point could be considered as a handicap – not necessarily is it at the time of termination. The assessment is hard to make.   

Furthermore, the employer is obliged to provide the necessary measures to ensure that the employee is able to perform his/hers job despite of the handicap. However, this is unless this puts a disproportionate burden on the employer.

Age:

Also age is a protected criterion, and not only discrimination of employees with a high age is protected by the law. However, it is often the employee's high age that gives rise to a claim under the Act.

The protection of discriminatory treatment because of age means e.g., that it is no longer accepted to have a policy in the company which states, that employees reaching a certain age must retire automatically. Furthermore, age must not be a criterion when deciding which employee(s) to e.g. dismiss, move, educate, degrade etc.

As the burden of proof is divided between the employer and the employee, it is relevant to know when the employee has proved actual circumstances that give a reason to believe that the Act has been violated. If several employees are dismissed and they all are the oldest, this will properly be enough. However, if the dismissed employees are the 3rd and the 5th oldest, this will properly not be enough to proof "actual circumstances". Beside the statistics, also the way of the dismissal will affect the assessment of whether the employee has proved "actual circumstances".

Sum up/conclusion

The Act contains an exhaustive list of criteria, which the employer must not emphasize when making any employment related decisions. Thus, an employee cannot claim to have been discriminated based on other criteria than those listed. Primarily the criteria "handicap" and "age" has been subject to (court) cases, where the sanction typically vary between 6, 9 and 12 months of salary depending on the seniority of the employee. Big caution should therefore be taken if there is risk that the employee will be protected by this Act as the consequences of breach can be a high very expensive for the employer.

Finland

As in Denmark, due to the EU law, similar rules regarding discrimination apply also in Finland. Discrimination has been a topical subject in the recent national debate, which the Finnish Supreme Court's fairly recent decisions also showcase. Firstly, as stated in precedent KKO 2018:39, obesity can be covered not only by the concept of 'disability' within the meaning of Directive 2000/78 as earlier stated by the European Court of Justice, but it can be also evaluated as a state of health of an employee. Secondly, despite the arguments presented in other recent precedent KKO 2018:31, according to which the employer's proportionate actions may essentially vary on a case-by-case basis depending on the circumstances, the requirements for employee's state of health should in any case be assessed by the duties of the employee and the health and safety standards set by law. Due to the recent legal praxis, in order to avoid prohibited discrimination, employers shall consider even more extensively proper adjustments and working arrangements e.g. in the event of obesity, alongside devoting attention to proportional procedures at any point during the employment relationship.

Sweden

Employers and service providers must not discriminate against individuals on account of any of the following protected characteristics: sex, transgender identity or expression, ethnicity, religion or other belief, disability, sexual orientation or age.

An individual, who is being discriminated against, may be entitled to damages under the Discrimination Act.

The fact that a person feels they are being discriminated against does, however, not necessarily mean that discrimination within the meaning of the Discrimination Act is at hand.

Direct discrimination, within the meaning of the Discrimination Act, is at hand where an individual is treated less favorably than another individual in a comparable situation and such less favorable treatment has a connection to one of the protected characteristics.  

Indirect discrimination, within the meaning of the Discrimination Act, is at hand where an individual is treated less favorably by virtue of a practice which appears neutral but may specifically disadvantage individuals of one of the protected characteristics.

Beyond direct and indirect discrimination, the Discrimination Act defines four additional forms of discrimination: inadequate accessibility, harassment, sexual harassment and giving instructions to discriminate against an individual.

An individual may only invoke the Discrimination Act if the allegedly discriminatory circumstances experienced by the individual fall within the definition of (at least one of) the forms of discrimination defined by the Discrimination Act.

An employer must, on a regular, basis examine whether there is a risk of discrimination within the meaning of the Discrimination Act in its operation and take reasonable actions to prevent any such discrimination.