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April 2013, Court of Justice of the European Union (CJEU). Joined Cases C-335/11 and C-337/11. Full judgment (link to curia.europa.eu). Also Advocate General's opinion.
The European Union court modified its definition of 'disability' in the Framework Employment Directive, to take greater account of the social model of disability. This model recognises the barriers caused by the envionrment and people's attitudes to disability. The court also said the aim of the reasonable adjustment duty was to remove barriers that hinder 'full and effective participation' by disabled people. The court emphasised the importance of the UN disability convention (CRPD), and used it when interpreting the Directive.
Perhaps the most important aspect of this case is that the European court (CJEU) modified, and most likely widened, the definition of disability it had given previously, in its 2006 Chacón Navas decision. The court was considering what counts as a disability under the Framework Employment Directive, which sets out minumum standards of protection against disability discrimination. Equality Act 2010 must comply with the directive.
The employers in the present case tried to argue that the definition of disability must be restricted in various ways. The CJEU rejected their arguments. It kept the defintion wide. For example, the court held that disabilities caused by illness are not excluded from the definition. However, the court also drew on the UN disability convention (which the EU ratified in 2010) to say that disability is an 'evolving concept', and to modify the definition it had given in 2006:
In particular, the European court drew on the UN disability covention (CRPD) to incorporate the social model of disability into the definition. The social model recognises that barriers are created by people's attitudes, and by the envionment. In the words of the UN Covention (as quoted by the European court) "disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others."
It would be a positive development (to my mind) if this leads to the courts taking greater account of barriers created by people's attitudes, rather than just focussing on how the impairment affects a person's abilities. See further below My comment.
(More on the social model generally: Reluctance to be seen as 'disabled': Social model.)
The CJEU's new definition is effectively as follows (more accurate quotes are given below under Meaning of disability). The 2006 version is also given, for comparison.
..a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one....
..the concept of 'disability' must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life.
(Chacón Navas, 2006. The judgment also says that the limitation must be long-term.)
Another change in the definition, again drawn from the UN Convention, is that the limitation need now only be one which "may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers". In Chacón Navas, the court had said that the limitation should be one which "hinders the participation of the person concerned in professional life". So there is now greater emphasis on 'full' and 'effective' participation.
The court also drew on the UN disability covention (CRPD) to give a wide interpretation of the duty to make reasonable adjustments (the EU legislation calls it 'reasonable accommodation'). As with the meaning of disability, discussed above, the court talked about the aim being to secure full and effective participation of disabled people in professional life, on an equal basis others. See further below Reasonable accommodation (reasonable adjustments): UN Convention.
54. Thus, with respect to [Framework Employment] Directive 2000/78, that concept [of reasonable accommodation] must be understood as referring to the elimination of the various barriers that hinder the full and effective participation of persons with disabilities in professional life on an equal basis with other workers.
The CJEU emphasised the importance of the UN Convention on the Rights of Persons with Disabilities (CRPD), ratified by the EU in 2010. The court said the provisions of the UN Convention are now an integral part of the European Union legal order. The EU's Framework Employment Directive must now, as far as possible, be interpreted in a way that is consistent with the Convention.
As discussed above, in the present case the CJEU used the Convention in interpreting two different areas of the Directive: firstly the meaning of 'disability' (there is a quote from the CJEU judgment below, under Meaning of disability: Importance of the UN Convention (CRPD)); and secondly the duty to make reasonable adjustments..
The CJEU held that a reduction in working hours is a step which may be required by the duty to make reasonable accommodation (ie reasonable adjustments). The court also made some general comments on this duty. See below Reasonable accommodation (reasonable adjustments).
Finally the court considered the lawfulness of a Danish law which allows an employee to be dismissed with a shorter notice period if he or he has been off sick for a total of 120 days. Basically, the CJEU held that:
Firstly, the fact that the 'disability' definition in the 2006 Chacón Navas focussed on participation in professional life has influenced decisions by the Employment Appeal Tribunal in Britain (see Chacón Navas: UK definition of disability). The modified definition in the present case has the same focus, so those decisions should remain valid, as should my comments on Relevance to stammering of the Chacón Navas case. (Update: This is confirmed by the Employment Appeal Tribunal citing the present case in Sobhi v Commissioner of Police of the Metropolis, May 2013.)
It is very welcome that the CJEU has modified the definition of 'disability' to take account of the social model, as set out in the UN Convention. The CJEU's wording "in interaction with various barriers" should presumably be read in the context of the "attitudinal and environmental barriers" mentioned in the UN Convention.
Many disabled people, including those who stammer, face barriers due to the attitudes of employers and others. For example: seeing a stammer an employer may turn down a job applicant despite the person being perfectly capable of doing the job well.
It is not yet clear what practical implications the court's decision will have. The social model was not important to the facts of this particular case. The Advocate General's comments quoted below under No minimum level of severity? may perhaps give a clue as to how the law could develop. She mentions asymptomatic HIV infection, and in the next paragraph suggests (without deciding) that there may be no minimum level of severity for a disability. Asymptomatic HIV is a classic example of a condition where people's attitudes can be a major barrier, but where the condition itself will hardly ever affect the person's ability to do a job. Cases on whether there is a 'disability' under the UK definition often turn on whether the impairment has a 'substantial' effect on ability. It would be a positive development (to my mind) if - perhaps driven by EU law and the UN Convention - the UK definition of 'disability' were to move away from the effect on a person's abilities, so as to recognise that even where the impairment does not have this 'substantial effect' the person may be disabled by people's attitudes.
(Note on HIV: HIV infection is classed as a disability under Equality Act 2010. However, that is because HIV is specifically mentioned in the legislation. Principles developed by the CJEU should apply generally, to any impairment.)
The judgment (from para 75) implies that a sickness absence policy which triggers an adverse consequence after a certain time off sick may be indirect discrimination against disabled employees, if it does not distinguish between disability-related absence and other absence. The absence policy would then be unlawful unless objectively justified. For example, there will be the question whether the policy goes beyond what is necessary to acheive the legitimate aim. The court says: "...a worker with a disability has the additional risk of an illness connected with his disability. He thus runs a greater risk of accumulating days of absence on grounds of illness, and consequently of reaching the 120-day limit..." (para 76 of the judgment). UK cases on sickness absence policies have previously focussed on the reasonable adjustment duty (Equality Law Reports, commentary, May 2013). See also Excessive sick leave?
A Danish law allowed those who had been off ill for a certain number of days to be dismissed with only one month's notice, shorter than the notice normally required under Danish employment law.
The applicants argued that they had a disability, and that this reduced notice period was unlawful disability discrimination, in breach of the EU Framework Directive.
The case was brought by 2 applicants, one of whom (Ms Ring) had developed back pain. The employer did not take measures which might have alleviated her complaints, such as acquiring an adjustable-height desk for her workstation, or offering her part-time working. The second applicant, Ms Werge, had whiplash following a road accident.
The CJEU adapted the definition of 'disability' it had previously given in the 2006 case of Chacon Navas. This adaptation was in the light of the UN Convention on the Rights of Persons with Disabilities (CRPD) which the European Union had ratified in 2010. The court said:
38 ... the concept of 'disability' must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers.
39 In addition, it follows from the second paragraph of Article 1 of the UN Convention that the physical, mental or psychological impairments must be 'long-term'.
The court in this case had been asked particularly about the position of an illness (see below), though of course 'disability' is not limited to illness. The court said about illness:
47 ... the concept of 'disability' in Directive 2000/78 must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one....
On the meaning of disability, see further above Summary and comment.
The CJEU said that the provisions of the CRPD were now an integral part of the European Union legal order The EU's Framework Employment Directive must now, as far as possible, be interpreted in a way that is consistent with the CRPD.
The court set out its own previous definition of 'disability, and the CRPD wording which led to the change:
36 The concept of 'disability' is not defined by Directive 2000/78 itself. The Court therefore held, in paragraph 43 of its judgment in "Chacón Navas", that the concept must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life.
37 The UN Convention [ie. the CRPD], which was ratified by the European Union by decision of 26 November 2009, in other words after the judgment in "Chacón Navas" had been delivered, acknowledges in recital (e) that 'disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others'. Thus the second paragraph of Article 1 of the convention states that persons with disabilities include 'those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others'.
The court said that 'disability' is not limited to disabilities that are congenital or result from accidents. It can include disability caused by illness, curable or incurable, provided the illness entails the relevant limitation (see para 47 quoted above).
The Advocate General (at para 37 of her Opinion), expands on the position regarding a curable illness. Basically it will depend whether the limitation is long-term.
The applicants in this case were fit to work part-time. The court rejected an argument by the employers that this was inconsistent with them having a disability. A disability did not imply complete exclusion from work or professional life.
The Danish court had asked whether something can be a disability if it does not require special aids, but just means that the person is unable to work full-time.
The CJEU said yes. 'Disability' does not depend on the nature of accommodation measures, such as whether special equipment is required. The definition of 'disability' comes before any issue of reasonable accommodation under Article 5 of the directive. Reasonable accommodation is a consequence of the person having a 'disability', not part of the definition of disability.
This was a point raised by the Advocate General rather than the court itself. See below No minimum level of severity?
The CJEU was asked whether a reduction in hours, such as working part-time, can be a reasonable accommodation. The court said yes it can.
A reduction in hours could fall within 'patterns of working time' in recital 20 of the Framework Employment Directive. In any event, though, the list in recital 20 is not exhaustive.
(Recital 20 says; "Appropriate measures should be provided, i.e. effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources.")
The CJEU again took into account the CRPD (i.e. the UN Convention), this time to give a broad interpretation to the duty to make reasonable accommodation:
53. In accordance with the second paragraph of Article 2 of the UN Convention, 'reasonable accommodation' is 'necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms'. It follows that that provision prescribes a broad definition of the concept of 'reasonable accommodation'.
54. Thus, with respect to [Framework Employment] Directive 2000/78, that concept must be understood as referring to the elimination of the various barriers that hinder the full and effective participation of persons with disabilities in professional life on an equal basis with other workers.
It may be of particular significance in future cases that the court saw the aim as being to secure full and effective participation in professional life, on an equal basis others.
The CJEU commented that the accommodation must be reasonable, in that it must not constitute a disproportionate burden on the employer. In the present case, it was for the national court to assess whether a reduction in working hours would be a disproportionate burden on the employers.
It followed from recital 21 that account must be taken in particular of the financial and other costs entailed by such a measure, the scale and financial resources of the undertaking, and the possibility of obtaining public funding or any other assistance.
The CJEU also pointed out that, as stated in recital 17, the directive does not require the recruitment, promotion or maintenance in employment of a person who is not competent, capable and available to perform the essential functions of the post concerned, without prejudice to the obligation to provide reasonable accommodation for people with disabilities, which includes a possible reduction in their hours of work.
Under Danish employment law, after 6 months employment the employer had to give an employee 3 months notice (or sometimes more) to terminate the employment. However, there was special provision if an employee had received his salary during periods of illness for 120 days in total during any period of 12 consecutive months. In this case, a written agreement could stipulate that the employee could be dismissed with one month's notice.
The Danish court asked the CJEU whether this was lawful if those absences were a consequence of the employer's failure to make reasonable accomodation under Article 5 of the Framework Employment Directive. The CJEU said no, it would breach the directive.
What if the employee's absence was not due to a failure to make reasonable accommodation? Was it lawful to apply the reduced notice period after an absence due to illness attributable wholly or partly to a disability?
The CJEU said this was not direct discrimination, because the reduced notice applied in the same way to disabled and non-disabled employees who had been absent for more than 120 days due to illness.
However, there was potential indirect discrimination. The 120-day rule was liable to place disabled workers at a disadvantage. So the question was whether the difference of treatment was objectively justified by a legitimate aim, and whether the means used to achieve that aim were appropriate and did not go beyond what was necessary to achieve the aim pursued by the Danish legislature.
The CJEU accepted that the provision had a legitimate aim: broadly to encourage employers to recruit and keep workers who had repeated absences due to illness.
However, "the risks run by disabled persons, who generally face greater difficulties than non-disabled persons in re-entering the labour market, and have specific needs in connection with the protection their condition requires, should not be overlooked..." The CJEU left it to the Danish court to assess whether the provision did not go beyond what was necessary to achieve the legitimate aim.
The Advocate General's Opinion touched on the severity of a disability. She said there is nothing in the wording of Directive 2000/78 to indicate that the disability has to have a certain degree of severity (para 35, quoted below). However this did not have to be definitely resolved here, as it had not been addressed in the proceedings.
An Advocate General's opinion is not binding but can be persuasive.
33. A distinction must therefore be drawn between sickness as the possible cause of the impairment and the impairment resulting from sickness. A permanent limitation resulting from sickness which hinders participation in professional life is also covered by the protection of the directive.
34. The present cases concern physical impairments that manifest themselves inter alia in pain and lack of mobility. The distinction between sickness and disability is therefore easier to draw in these cases than in the case on which the Supreme Court of the United States of America had to rule, where it held that even an asymptomatic HIV infection may constitute a disability within the meaning of the ADA 1990. Whether a person's complaints constitute a limitation in a particular set of circumstances is a matter for assessment by the court of the Member State.
35. There is nothing in the wording of Directive 2000/78 to indicate that its scope of application is limited to a certain degree of severity of disability. (18) Since, however, this issue has been neither raised by the referring court nor discussed by the parties to the proceedings, it does not need to be definitively resolved here.
Footnote 18: - The European Court of Human Rights, too, has recognised sickness from diabetes mellitus type 1, which the national authorities considered to be minor, as a disability for the purposes of protection against discrimination: Glor v. Switzerland, no 13444/04, ECHR 2009.
Advocate General's opinion. Note that this Opinion is not binding but can be persuasive.
For discussion of this, see above My comment.
At present, where there is an issue whether an impairment is a 'disability', one of the main points of argument in British cases tends to be whether it has a 'substantial' effect on ability to carry out normal day-to-day activities.
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Last updated 27th April, 2013