The European Court of Justice (ECJ) has confirmed that a reduction in working hours can be regarded as reasonable accommodation for disabled workers where the reduction makes it possible for the worker to continue in employment AND does not represent a disproportionate burden on the employer and clarifies the definition of disability.
Two Danish employees (one with back pain and one with whiplash injuries) were dismissed in accordance with Danish provisions after long-term sick leave. They brought claims in a Danish national court through their trade union for disability discrimination and the Danish national court referred to the ECJ a wide range of questions on the definition of disability, reasonable accommodation for the disabled and when a reduction in working hours can represent a disproportionate burden on employers.
A “disability” can include a condition caused by an illness that is medically diagnosed as curable or incurable, if that illness entails a limitation that results in particular from physical, mental or psychological impairments that, in interaction with various barriers, may hinder the full and effective participation of a person in professional life on an equal basis with other workers. The limitation must be a long-term one.
A “disability” does not necessarily imply a complete exclusion from work or professional life. A person can be disabled if his or her professional activity is hindered, but not made impossible. A person who is fit to do some work, but only part time, is capable of being disabled.
The ECJ went on to say that a reduction in working hours may be regarded as a reasonable accommodation for disabled workers where the reduction makes it possible for the worker to continue in employment. It is for the national court to assess whether or not a reduction in working hours, as an accommodation for the disabled worker, represents a disproportionate burden on the employer.
The judgement confirms (17) that the EU Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities.’
Implications for employers
- Under the Equality Act 2010, the test for the existence of a disability is whether or not an individual has a physical or mental impairment that has a substantial and long-term adverse effect on his or her ability to carry out day-to-day activities.
- A phased return to work is one of the best ways for employers to get the long-term ill or injured back to work, and may be a reasonable adjustment if the employee is disabled.
- Sickness and disability are inherently different and to be treated as such
- Whilst employers are not required to recruit, promote or maintain in employment or training an individual who is not competent, capable and available to perform the essential functions of the post concerned OR to undergo the relevant training provide at least that they are to provide reasonable accommodation for people with disabilities.’
For more details and guidance, read on …
The United Nations Convention on the Rights of Persons with Disabilities, which was approved on behalf of the European Community by Council Decision 2010/48/EC of 26 November 2009 (OJ 2010 L 23, p. 35) (‘the UN Convention’), states in recital (e) in its preamble:
‘Recognising 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.’
It should be noted, that international agreements concluded by the European Union are binding on its institutions, and consequently they prevail over acts of the European Union (Article 216(2) TFEU) (see case C‑366/10 Air Transport Association of America and Others  ECR I‑0000, paragraph 50 and the case-law cited).
Under Article 1 of the UN Convention:
- ‘The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.
- 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.’
- Under the fourth indent of Article 2 of the Convention, ‘“Reasonable accommodation”means 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.’
European Union law
The concept of ‘disability’ is not defined by Directive 2000/78 itself. This judgement referred to paragraph 43 of its judgment in Chacón Navas, restating that the concept of ‘disability’ can be broken down into the following;
- including a condition caused by an illness
- medically diagnosed as curable or incurable
- where that illness entails a limitation
- the limitation 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 nature of the measures to be taken by the employer is not decisive for considering that a person’s state of health is covered by that concept.
Recitals in the preamble to Directive 2000/78 state:
(5) ‘Reasonable accommodation for disabled persons’, reads as follows:
‘In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.’
(16) The provision of measures to accommodate the needs of disabled people at the workplace plays an important role in combating discrimination on grounds of disability.
(20) 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.
(21) To determine whether the measures in question give rise to a disproportionate burden, account should be taken in particular of the financial and other costs entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance.’
Here the court determined that Article 5 of Directive 2000/78 must be interpreted as meaning that a reduction in working hours may constitute one of the accommodation measures referred to in that article. It is for the national court to assess whether, in the circumstances of the main proceedings, a reduction in working hours, as an accommodation measure, represents a disproportionate burden on the employer.
The issue of a shortened notice period for the sick and disabled
The court observed that paragraph 44 of Chacón Navas, the concepts of ‘disability’ and ‘sickness’ cannot simply be treated as being the same. That means that the employers should not apply a criteria for disability that they would also apply for sickness; the two are different.
(68) reads that the Directive 2000/78 precludes an employer terminating the employment contract with a reduced period of notice if the disabled worker concerned has been absent because of illness where those absences are the consequence of the employer’s failure to take the appropriate measures in accordance with the obligation to provide reasonable accommodation laid down in Article 5 of that directive. (Note: This is a law peculiar to Denmark but reinforces what follows).
(92) of this judgement reads “ In the light of the above considerations ……… that Directive 2000/78 must be interpreted as precluding national legislation under which an employer can terminate the employment contract with a reduced period of notice if the disabled worker concerned has been absent because of illness, with his salary being paid, for 120 days during the previous 12 months, where those absences are the consequence of his disability, unless that legislation, as well as pursuing a legitimate aim, does not go beyond what is necessary to achieve that aim, that being for the referring court to assess.”
Citation: Ring v Dansk almennyttigt Boligselskab DAB; Skouboe Werge v Dansk Arbejdsgiverforening Cases C-335/11 and C-337/11 ECJ