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Supreme Court of Denmark

Refusal of request for additional leave not in contravention of the Danish Discrimination Act 

Case no. 311/2012

Judgment delivered on 8 October 2014.

FOA acting for A
Municipality Y

Refusal of request for additional leave to care for mentally ill daughter not in contravention of the Danish Discrimination Act

A was employed as an on-call worker in Municipality Y and worked at a school for mentally retarded children. According to the collective agreement, A was granted unpaid leave from 1 January to 31 March 2009, just as she was granted compensation for loss of earnings under section 42 of the Danish Act on Social Services due to her daughter's mental state. A's leave was extended to 16 August 2009. On 24 August 2009, A took medical leave, and in September 2009, her leave was extended to 31 December 2009. At that time, the school informed her that for operational reasons her leave could not be extended further.

At the end of November 2009, A applied to have her leave extended to 1 July 2010, which the school refused. It informed her that if she did not wish to take up her position again on 1 January 2010, she would be dismissed with effect from the end of December 2009. In a letter of 4 December 2009, A wrote that she would not be able to take up her position again. In a letter of 9 December 2009, the school acknowledged A's notice of termination. The parties failed to reach an agreement in the subsequent negotiations on dismissal, termination and notice of termination. FOA later argued that A was entitled to additional leave according to the collective agreement.

The Supreme Court held, among other things, that interpretation of a collective agreement is outside of the jurisdiction of the courts of law. The claim for additional leave under the collective agreement had not been put forward during the parties' negotiations, and it had not been established that A was entitled to additional leave. The Supreme Court also held that the facts of the case provided no basis for inferring that A had been discriminated against or harassed on the grounds of her daughter's mental condition.

The High Court had reached the same conclusion.

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