This European Court of Justice (ECJ) decision held that under the EU Framework Employment Directive a “disability” is a long-term limitation which results from physical, mental or psychological impairments and hinders participation in professional life. This decision (and Ring which modified the definition) led UK tribunals to take account of an impairment’s effect on a wider range of work-related activities, in deciding whether the impairment is a “disability”. From January 2024 the ECJ’s approach was incorporated into the wording of the Equality Act 2010 (EqA): below My comments.
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 European Court of Justice (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 ECJ whether ‘sickness’ is included in the EU Framework Employment Directive, 2000/78, 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 ECJ 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
Equality Act definition of “disability” amended from January 2024
To give effect to this ECJ decision, and later Ring, British tribunals widened the meaning of “disability” in EqA employment claims, though a wider meaning of “normal day-to-day activities”. Eg they interpreted it to include a high pressure exam for promotion.
From 1st January 2024, the supremacy of EU law in Britain (so far as it remained) was largely repealed. However, from the same date the EqA was amended to preserve this wider meaning of “normal day-to-day activities”. The EqA as amended says that in employment claims, ability to carry out “normal day-to-day activities” is to be read as including “ability to participate fully and effectively in working life on an equal basis with other workers”. So, broadly, the wider definition of “disability” in this EU case (as modified by Ring) – at least as applied by British tribunals before Brexit – continues to have effect in EqA employment claims, under the amended EqA wording.
See further: Disability: ‘Normal day-to-day activities’>Employment claims>Extended meaning.
As discussed at that link, this extended meaning of “disability” can be helpful for stammering, particularly as regards recruitment and promotion. For example, it could be argued that a job interview is a “normal day-to-day activity”, in an employment claim.
The directive
The EU Framework Employment Directive, which the ECJ was considering, set a minimum standard with which UK law had to 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 meant that this and later cases on the meaning of ‘disability’ were binding on member states – at least in setting a mininum of what must be covered.
