This European Court of Justice (ECJ) held that under the Framework Employment Directive a ‘disability’ is a long term limitation which results from physical, mental or psychological impairments and hinders participation in professional life. The case has influenced UK tribunals to take account of an impairment’s effect on work-related activities in deciding whether it is a ‘disability’ (below UK definition of disability). The ECJ has since modified the definition of disability in Ring v Dansk almennyttigt Boligselskab (2013).
European Court of Justice, C-13/05 (July 2006). Full judgment (eur-lex.europa.eu).
Facts
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. This would mean she could not claim reinstatement.
However, the Spanish court pointed out the link between sickness and disability. It asked the European Court of Justice (ECJ) whether ‘sickness’ is included in the directive, either as ‘disability’ or as a separate ground.
Judgment of ECJ
‘Disability’ in the directive has autonmous EU meaning
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).
Meaning of disability – different from ‘sickness’
The court said that in the context of this directive
43 …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.
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).
Dismissal
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.
Sickness not an additional ground
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.
My comments
The directive
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.
‘Disability’ as EU concept
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.
What is a ‘disability’?
There may be a danger of reading too much into this ECJ judgment. The main point of the judgement 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.
However, what the court said on on the meaning of ‘disability’ has been important in later UK cases. The ECJ 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.
Note: Since this case, the European court has modified its definition of disability, in Ring v Dansk almennyttigt Boligselskab (2013). However, the new formulation in the Ring case retains the focus on participation in professional life. Therefore the comments below, and the cases below which have applied the definition in Chacón Navas, should remain valid.
UK definition of disability
The UK Equality Act definition of ‘disability’ can be wider that the definition given in Chacón Navas. 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 not focus solely on work activities. For example limitations which affect travel to work, socialising with colleagues etc, can hinder participation in professional life.
The UK meaning of ‘disability’, at least under previous practice, could also be narrower than the ECJ concept in some ways. 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 and ‘day-to-day’. The ECJ, on the other hand, focuses on whether the limitation hinders participation in professional life. The ECJ’s supported the EAT’s decision in:
Paterson v Commissioner of Police of the Metropolis, Employment Appeal Tribunal (EAT), 2007.
A high pressure written exam for promotion was held to be a normal day-to-day activity. The claimant had dyslexia, and was held to have a disability, despite the high quality of written work he had produced as a chief inspector.The EAT would have reached that conclusion under British law alone. But the EAT said it was in any event bound to that conclusion by the European Court decision in Chacón Navas, which focusses on whether the impairment hinders participation in professional life. The EAT said: “We must read s1 [of the DDA] in a way which gives effect to EU law. We think it can be readily done, simply by giving a meaning to day-to-day activities which encompasses the activities which are relevant to participation in professional life. Appropriate measures must be taken to enable a worker to advance in his or her employment. Since the effect of the disability may adversely affect promotion prospects, then it must be said to hinder participation in professional life.”
See further ‘Normal day-to-day activities’>Recruitment and promotion
Despite the EAT in Paterson saying it would have reached that decision even without the European judgment, it is difficult to see that a high pressure promotion exam is a ‘normal day-to-day activity’ as that phrase would commonly be understood.
In the later Adams case, the EAT was not willing to hold that Chacón Navas included unusual specialist work activites. (It remains to be seen whether the European Court agrees with them being excluded, if the issue gets before it). However, the EAT left a lot of scope for work activities to be covered:
Chief Constable of Dumfries & Galloway v Adams 2009, Emplyment Appeal Tribunal (EAT)
The EAT considered that the Chacón Navas judgment was “plainly” not meant to refer to the special skill case such as the silversmith or watchmaker who is limited in some activity that the use of their specialist tools particularly requires. However, under the Chacón Navas judgment a tribunal was (said the EAT) able to take account of an adverse effect that is attributable to a work activity that is normal in the sense that it is to be found in a range of different work situations – such as nightshift working in that particular case.
See further ‘Normal day-to-day activities’>At work
Relevance to stammering
In the light of how the EAT in Paterson applied Chacón Navas (a high pressure exam for promotion being a ‘normal day-to-day activity’) there seems to be a strong argument that speech activities which are regularly part of a recruitment or promotion processes are also normal day-to-day activities – eg job interviews, presentions, oral assessments. See further ‘Normal day-to-day activities’>Recruitment and promotion.
Paterson and Chacón Navas can also be used to argue for a wide inclusion of activities which form part of the job itself, such as making presentations, and taking part in meetings. These seem to be common to a range of different work situations, as discussed in Chief Constable of Dumfries & Galloway v Adams. See further ‘Normal day-to-day activities’>At work .
Prof. Lisa Waddington (2007) comments that stuttering leading to problems with making presentions may meet the ECJ test of disability but not the UK test (at least the UK test as understood before the Paterson case). Reference: Lisa Waddington, ‘Case C-13/05, Chacón Navas v. Eurest Colectividades SA’ (2007) 44 Common Market Law Review pp. 487-499.
In practice, of course, the stammer will often also have a substantial effect in various obviously normal day-to-day activities (as well as in less usual activities such as 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 Equality Act protection (eg reasonable adjustment duty) will extend to presentations and other work activities. (See Normal day-to-day activities: Equality Act obligations are not limited to ‘normal day-to-day activities’.)
