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25 September 2019
The Supreme Court recently found that the dismissal of a disabled employee from a publicly funded, reduced-hours job when he reached the mandatory retirement age – and the public funding lapsed – did not violate the Anti-discrimination Act.
When an employee with a reduced-hours job reaches the statutory retirement age, the public funding relating to the job ends. However, according to the Anti-discrimination Act, employers cannot discriminate against employees on grounds of age or disability.
The question before the Supreme Court was whether the dismissal of the employee in question due to the lapse of public funding constituted discrimination under the Anti-discrimination Act or whether the dismissal violated the Act on Part-Time Work and the Salaried Employees Act.
The employee worked 20 hours a week in a white collar position. The local authorities paid the employer two-thirds of the reduced-hours working scheme's costs through a wage subsidy. The employer dismissed the employee when he reached the statutory retirement age, referring to the lapse of the agreement on reduced-hours working with the local authorities. However, the employee wanted to continue working for the employer in a position where the pay and employment terms corresponded to his working capacity (ie, a part-time position with reduced pay).
The employee's trade union believed that the dismissal contravened the Anti-discrimination Act, the Act on Part-Time Work and the Salaried Employees Act and therefore initiated proceedings in the Maritime and Commercial Court, which ended up in the Supreme Court.
The Supreme Court upheld the Maritime and Commercial Court's judgment. First, the Supreme Court established that the reduced-hours working scheme consists of two elements – the employment relationship and a public subsidy – and must be regarded as a job-creating effort allowed under the provision in the Anti-discrimination Act which specifies that according to statute or other public efforts, measures can be taken to improve the employment possibilities of people of a certain age or with certain disabilities. The termination of such a positive special measure because an employee had reached the statutory retirement age cannot, in the Supreme Court's opinion, be considered unlawful discrimination – on the grounds of neither age nor disability.
Second, the Supreme Court stated that the employer's receipt of a subsidy from the local authorities for the reduced-hours job had to be regarded as a clear condition of employment. The basis of the employment agreement had thus lapsed when the wage subsidy ended.
Against this background, the Supreme Court found that the employee's dismissal from his reduced-hours job did not violate the Anti-discrimination Act.
Since the basis of the employment agreement had lapsed due to the reduced-hours working scheme's cessation, the dismissal did not conflict with the Act on Part-Time Work or the Salaried Employees Act.
The Supreme Court's decision has established that:
For further information on this topic please contact Yvonne Frederiksen at Norrbom Vinding by telephone (+43 35 25 3940) or email (firstname.lastname@example.org). The Norrbom Vinding website can be accessed at norrbomvinding.com.
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