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European Court of Justice, C-13/05
This European Court of Justice (ECJ) held that sickness in itself is not enough to qualify as a 'disability' within the EU Framework Employment Directive. 'Disability' is a long term limitation which results from physical, mental or psychological impairments and hinders participation in professional life. The case may perhaps require an extension of the UK concept of disability where an impairment has an effect on work-related activities which are not 'normal day-to-day activities'.
An employee who had been off work sick for eight months was dismissed. The ECJ does not indicate the nature of the illness. The employer acknowledged that the dismissal was 'unlawful' under Spanish law and offered her compensation. However the employee argued that the dismissal was 'void' on account of unequal treatment and discrimination, which would mean she could claim to be reinstated in her post.
The Spanish court said that, according to Spanish case law, this type of dismissal is unlawful rather than void, because in Spanish law sickness is not expressly referred to as a prohibited ground of discrimination. However, the Spanish court observed that there is a causal link between sickness and disability. It referred to the World Health Organisation's International Classification of Functioning, Disability and Health (ICF). It was apparent from this, said the court, that 'disability' is a generic term which includes defects, limitation of activity and restriction of participation in social life. Sickness is capable of causing defects which disable individuals. Given that sickness is often capable of causing an irreversible disability, the Spanish court took the view that workers must be protected in a timely manner under the prohibition of discrimination on grounds of disability. Otherwise, the protection intended by the legislature would, in large measure, be nullified.
The Spanish court asked the European Court of Justice to rule on two questions:
"Does Directive 2000/78, in so far as Article 1 thereof lays down a general framework for combating discrimination on the grounds of disability, include within its protective scope a ... [worker] who has been dismissed by her employer solely because she is sick?"
If sickness does not fall within that framework, "...can sickness be regarded as an identifying attribute in addition to the ones in relation to which Directive 2000/78 prohibits discrimination?"
The concept of 'disability' for the purpose of Directive 2000/78 must be given an autonomous and uniform interpretation throughout the Community (paras 39-42).
In the context of this directive which aims to combat certain types of discrimination as regards employment and occupation, '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 (para 43).
By using the concept of 'disability', the legislature deliberately chose a term which differs from 'sickness'. The two concepts therefore could not be treated as being the same (para 44). The importance attached by the directive to measures for adapting the workplace (reasonable adjustments) demonstrated that the EU legislature envisaged situations in which participation in professional life is hindered over a long period of time. In order for the limitation to fall within the concept of 'disability', it must therefore be probable that it will last for a long time (para 45). There was nothing in the directive to suggest that workers are protected by the prohibition of discrimination on grounds of disability as soon as they develop any type of sickness (para 46).
It followed that a person who has been dismissed by his employer solely on account of sickness does not fall within the general framework laid down by the directive for combating discrimination on grounds of disability (paras 47, 52).
The ECJ also held that the prohibition, as regards dismissal, of discrimination on grounds of disability contained in Articles 2(1) and 3(1)(c) of the directive precludes dismissal on grounds of disability which, in the light of the obligation to provide reasonable accommodation for people with disabilities, is not justified by the fact that the person concerned is not competent, capable and available to perform the essential functions of his post (paras 48-52). So, broadly, the employer cannot dismiss someone because of disability if reasonable adjustments would enable them to carry on the job.
The Spanish court had also asked whether sickness can be regarded as a ground in addition to those in relation to which the directive prohibits discrimination. The ECJ held that it could not (paras 53-57).
It was true that fundamental rights which form an integral part of the general principles of Community law include the general principle of non-discrimination. That principle is therefore binding on Member States where the national situation at issue in the main proceedings falls within the scope of Community law. However, it does not follow from this that the scope of the directive should be extended by analogy beyond the discrimination based on the grounds listed exhaustively in its Article 1 (para 56).
Summary of Advocate General's Opinion, which is given before the main court decision and also carries some weight.
Link to full text of ECJ Decision and AG Opinion (on ECJ website)
The EU Framework Employment Directive, which the ECJ was considering, sets a minimum standard with which UK law must comply as regards disability discrimination in employment.
The ECJ said that 'disability' in this directive must be given an autonomous and uniform interpretation throughout the Community. This means we should expect further cases in which the ECJ will clarify the meaning of 'disability', and these will be binding on member states - at least in setting a mininum of what must be covered.
Despite the sweeping terms used by the ECJ ('autonomous and uniform interpretation throughout the Community'), the UK and other members states whose own law gives a definition of 'disability' may not have to restrict their definition so far as it is wider that the ECJ concept. Article 8 of the Directive says that Member States may introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in the Directive, and also that the implementation of the Directive shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States in the fields covered by the Directive. Recital 28 sets out a similar principle.
There is a danger of reading too much into this judgment. The main point of it is that sickness itself is not enough. The ECJ did not have any particular type of disability before it, in the context of which it could give more nuanced guidance.
With that important caveat in mind, one can look at what the ECJ said on the meaning of 'disability': It saw a 'disability' as a long term limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person in professional life.
The UK DDA definition of 'disability' can be wider that this. The UK definition takes into account limitations on day-to-day activities which are normal for people generally, rather than focusing only on work-related activities. Perhaps the ECJ concept, when it is developed further, will be seen not to focus solely on work activities. For example limitations which affect travel to work, and perhaps even socialising with colleagues etc, may hinder participation in professional life.
The UK meaning of 'disability' under current practice may also be narrower in some respects than the ECJ concept. Under UK domestic law, a limitation which hinders work-related activities is not thereby a disability unless the activities are normal day-to-day for people generally. The ECJ, on the other hand, focuses on whether the limitation hinders participation in professional life. This gives scope to argue that a wider concept of disability should sometimes be applied in the UK. In Paterson v Commissioner of Police of the Metropolis the Employment Appeal Tribunal in the UK held that it was bound by the ECJ's decision in Chacón Navas, and used it to support a view that a high pressure exam for promotion should be seen as a 'normal day-to-day activity' within UK law. It might be argued, in the context of stammering, that a limitation on ability to give presentations, do interviews, or take work-related oral exams should be seen as a disability. Lisa Waddington (2007) comments that stuttering leading to problems with making presentations may meet the ECJ test of disability but not the UK test (at least the UK test as understood before the Paterson case). In practice, of course, the stammer will often also have a substantial effect with respect to some normal day-to-day activities, as well as with respect to giving presentations, so as to meet the UK test in any event. Provided the stammer meets the UK test because of effects on normal day-to-day activities, the DDA protection (eg reasonable adjustment duty) will extend to presentations.
What if an impairment does not limit one's ability to do a job but there is discrimination due to prejudice or stereotypical assumptions? It would seem odd to exclude this from the directive. Firstly, one could say the impairment does hinder participation in professional life because of people's attitudes to it - though the ECJ actually asks whether there is a 'limitation' which hinders participation. Secondly, it may be argued that the directive covers perceived limitations as well as actual ones, for example where an employer makes a stereotypical assumption that a person who stammers will necessarily have a problem interacting with customers. Thirdly, it may be that the ECJ's reference to professional life was focussing on the directive's protective scope, rather than whether a condition or its effects constitute a 'disability. Fourthly, the ECJ's focus may be on limitations hindering participation in professional life generally, rather than looking at a particular job. Of course, it may well be that the ECJ simply did not have this type of situation in mind and will consider it when an appropriate case is referred to it.
Reference: Lisa Waddington, 'Case C-13/05, Chacón Navas v. Eurest Colectividades SA' (2007) 44 Common Market Law Review pp. 487-499. See also
Internet link: European Disability Forum Analysis of the first decision of the European Court of Justice on the disability provisions of the Framework Employment Directive (pdf file) - this also seems to be by Prof. Lisa Waddington.
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Last updated 5th July, 2007
