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Supreme Court of Denmark

Dismissal of disabled employee 

Case no. 104/2014

Judgment delivered on 11 August 2015

Danish Chamber of Commerce Employer acting for Skibby Supermarked A/S
HK/Danmark acting for A

Employer had failed to observe its accommodation obligation

A worked in a supermarket, when she was diagnosed with rheumatoid arthritis. Her condition caused severe functional limitations. After a long period of absence, A was dismissed with reference to the 120-day rule.

The Supreme Court based its decision on the fact that the employer knew or should have known that A was disabled as a result of her illness, which meant that the employer was obliged to take adequate measures under the Danish Anti-Discrimination Act to ensure that A could continue to work.

The Supreme Court stated that the 120-day rule of the Danish Salaried Employees Act could not be applied, if absence due to illness was due to the employer failing to take adequate accommodation measures as provided by the Anti-Discrimination Act. As the employer had not fulfilled this obligation, and as importance had to be given to the fact that A's absence could have been fully or partly avoided by such measures, the conditions for applying the 120-day rule had not been met at the time of her dismissal.

A was awarded compensation for loss of wages as well as compensation under the Anti-Discrimination Act, which was fixed at an amount corresponding to nine months' wages based on an overall assessment. In calculating the loss of wages, the sickness benefits received by A after the expiry of the minimum compensation period were deducted.

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