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Denmark – Restriction on homeworking not discrimination on grounds of ethnic or national origin

Written by
Norrbom Vinding, the largest labour and employment law practice in Scandinavia and the market leader in Denmark.
An amendment to working conditions restricting homeworking that led to the termination of the employment of a university lecturer based in Germany was not discriminatory, according to a recent finding of the Danish Board of Equal Treatment.  

Ethnic and national origin are among the protected criteria in the Danish Anti-Discrimination Act. This means that an employee is protected from, for example, dismissal on the grounds of ethnic or national origin. Initially, it will be up to the employee to show facts that create a presumption of discrimination.

The background

This case before the Board of Equal Treatment involved a lecturer of German origin who was employed by a Danish university. The lecturer had been resident in Denmark at the start of the employment relationship, but had since moved back to Germany. The lecturer therefore had a special agreement with the university that she could work from home in Germany three days a week.

After reducing the number of staff due to costs savings, the faculty management decided to emphasise the fact that staff had a duty to be present during working hours. In the future, employees wishing to work more than one day per week from home had to agree it with their direct manager.

As a result, the German resident lecturer’s agreement on homeworking days was terminated. The lecturer would not accept the amendment to the agreement and her employment was therefore terminated. The lecturer subsequently complained to the Board of Equal Treatment, alleging discrimination on grounds of ethnic or national origin.

The decision

The Board of Equal Treatment awarded in favour of the university. The Board found that the requirement for attendance at the workplace affected all employees equally regardless of ethnic origin and that the requirement was not enforced in a less favourable way for the lecturer than for the other employees. It was a neutral requirement that did not disadvantage people of particular ethnic or national origin.

The Board concluded that the lecturer had thus failed to establish any facts indicating that she had been discriminated against on the grounds of national or ethnic origin.

Norrbom Vinding notes

With its finding that the change in employment requirements was neutral and did not place people of a particular ethnic or national origin at a disadvantage, the Equal Treatment Board found that there was no indirect discrimination on the grounds of national or ethnic origin in this case. This was because it was the employee’s choice of residence, and not her origin, that created the situation that led to the termination of the employment relationship.