This is an outline of the Advocate General’s opinion, which is given some months before the actual court judgment. It carries a certain amount of weight even though it is not the main judgment of the court. For the facts, main court judgment and my comments, see main Navas v Eurest Colectividades SA page. Link to the Advocate General’s Opinion: bailii.org.
‘Disability’ as community law concept…
The Advocate General said that ‘disability’ in the directive is a Community legal concept which must be interpreted autonomously and uniformly throughout the Community legal system, with account taken of the context of the provision and the purpose of the legislation in question (para 64).
…but no fixed or exhaustive definition
However, account should be taken of the dynamic aspect of society’s perception of the phenomenon of ‘disability’ as a functional limitation resulting from a mental or physical defect, the evolution of medical and biomedical understanding and the major contextual differences in the assessment of a wide variety of disabilities (para 66). There should not be more or less exhaustive and fixed definitions of the term ‘disability’. The ECJ’s interpretation of the term must provide the national court with Community law criteria and points of reference with whose aid it can find a solution to the legal problem it faces (para 67).
What is a disability?
The Advocate General considered that disabled people are those with serious functional limitations (disabilities) due to physical, psychological or mental afflictions (para 76). He said It follows that:
- the cause of the limitations must be a health problem or physiological abnormality which is of a long-term or permanent nature;
- the health problem as cause of the functional limitation should in principle be distinguished from that limitation (para 77).
Therefore a sickness which causes what may be a disability in the future cannot in principle be equated with a disability, and so does not itself bring the directive into play (para 78). There is an exception only if during the course of the sickness permanent functional limitations emerge which must be regarded as disabilities despite the continuing sickness (para 79). A dismissal due to illness can therefore only fall within the disability provisions of the directive if the employee is able to make a reasonable case that the real reason for the dismissal is not the sickness itself but the resulting long-term or permanent limitations (para 80).
The Advocate General suggested as an answer to the first question of the Spanish court:
A sickness which causes what may be a disability in the future cannot in principle be equated with a disability.. ..[It therefore does not trigger the Framework Employment Directive]…. An exception to this rule is admissible only if during the course of the sickness long-term or permanent functional limitations emerge which must be regarded as disabilities. When relying on the prohibition of discrimination on the grounds of disability, the person concerned must then make a reasonable case that it is not the sickness itself, but the resulting long-term or permanent limitations which are the real reason for the dismissal.
The Advocate General also rejected the argument that sickness can be an independent ground for falling within the directive, in addition to disability etc.
