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Ring v Dansk almennyttigt Boligselskab

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Last updated 27th April 2013 (part update 13th June 2024).

The European Union (EU) court modified its definition of “disability” in the Framework Employment Directive, to take greater account of the social model of disability. It did this in the light of the UN disability convention (CRPD). The EU court’s wide definition of “disability” survives Brexit to a large extent, because the Equality Act 2010 (EqA) was amended from January 2024 to reflect it.

Court of Justice of the European Union (CJEU), 2013. Full judgment: bailii.org.
(Also Advocate General’s opinion (eur-lex.europa.eu)).

Summary and comment

Equality Act definition of “disability” amended from January 2024

To give effect to this EU court decision in Ring, and previously Chacón Navas, 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From 1st January 2024, the supremacy of EU law in Britain (so far as it remained) was largely repealed.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.

As regards the legal position in Britain, the remainder of this page is largely only of historical interest, if the claim arose after the end of 2023.

Meaning of “disability”: what EU court said in Ring

In its 2006 Chacón Navas decision, the EU court had already interpreted “disability” in the EU Framework Employment Directive more widely than it was defined in the Disability Discrimination Act 1995. This had led the British Employment Appeal Tribunual (EAT) in Paterson to find that, to comply with Chacón Navas, even a high pressure exam should be seen as a “normal day-to-day activity”. The Framework Employment Directive laid down minumum standards of protection against disability discrimination, with which the DDA 1995 and then the EqA had to comply.

In the present case, Ring, the EU court modified, and most likely widened, the definition of disability it had given in Chacón Navas. The employers in Ring tried to argue that the definition of disability must be restricted in various ways. The EU court rejected their arguments. It kept the definition wide. For example, the court held that disabilities caused by illness are not excluded from the definition. However, the EU court went further, drawing on the UN disability convention (which the EU ratified in 2010) to say that disability is an “evolving concept”, and to modify the definition it had given in 2006 …

Social model of disability

In particular, the EU court drew on the UN disability convention (CRPD) to incorporate the social model of disability into the definition. The social model recognises that barriers are created by people’s attitudes, and by the environment. In the words of the UN Convention (as quoted by the EU court) “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.” From January 2024, the EqA (though it does not implement the social model) includes wording about full and effective participation: see below ‘Full’ and ‘effective’ participation.

See further below My comment>Social model. (More on the social model generally: Reluctance to be seen as ‘disabled’>Social model.)

New and old wording

The EU court’s new definition of disability is effectively as follows (more accurate quotes are given below under EU court: Meaning of disability). The 2006 version is also given, for comparison.

New definition:

..a limitation which 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…. (2013)

Old definition

..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. (Chacón Navas, 2006. The judgment also says that the limitation must be long-term.)

‘Full’ and ‘effective’ participation

Another change in the definition, again drawn from the UN Convention, is that the limitation need only be one which “may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers”. In Chacón Navas, the court had said that the limitation should be one which “hinders the participation of the person concerned in professional life”. So there is now greater emphasis on ‘full’ and ‘effective’ participation.

This has since been taken into the wording of the EqA. From January 2024, the EqA definition of disability in employment claims refers to “ability to participate fully and effectively in working life on an equal basis with other workers”: Disability: ‘Normal day-to-day activities’>Employment claims>Extended meaning.

Reasonable adjustment duty – full and effective participation

The EU court also drew on the UN disability convention (CRPD) to give a wide interpretation of the duty to make reasonable adjustments (the EU legislation calls it ‘reasonable accommodation’). As with the meaning of disability, discussed above, the court talked about the aim being to secure full and effective participation of disabled people in professional life, on an equal basis others. See further below Reasonable accommodation (reasonable adjustments)>UN Convention.

54. Thus, with respect to [Framework Employment] Directive 2000/78, that concept [of reasonable accommodation] must be understood as referring to the elimination of the various barriers that hinder the full and effective participation of persons with disabilities in professional life on an equal basis with other workers.

UN Convention

The EU court emphasised the importance of the UN Convention on the Rights of Persons with Disabilities (CRPD), ratified by the EU in 2010. The court said the provisions of the UN Convention are now an integral part of the European Union legal order. The EU’s Framework Employment Directive must now, as far as possible, be interpreted in a way that is consistent with the Convention. As discussed above, in the present case the EU court used the Convention in interpreting two different areas of the Directive: firstly the meaning of ‘disability’ (there is a quote from the EU court judgment below, under Meaning of disability>Importance of the UN Convention (CRPD)); and secondly the duty to make reasonable adjustments.

Other points decided by the EU court

The EU court held that a reduction in working hours is a step which may be required by the duty to make reasonable accommodation (ie reasonable adjustments). The court also made some general comments on this duty. See below Reasonable accommodation (reasonable adjustments). Finally the court considered the lawfulness of a Danish law which allows an employee to be dismissed with a shorter notice period if the person has been off sick for a total of 120 days. Basically, the EU court held that:

  • the reduced notice was not lawful if the absences were a consequence of the employer’s failure to make reasonable accommodation;
  • otherwise, there was potentially indirect discrimination, but it was for the Danish court to decide whether the reduced notice was objectively justified.
    See below Lawfulness of Danish employment provision.

Facts

A Danish law allowed those who had been off ill for a certain number of days to be dismissed with only one month’s notice, shorter than the notice normally required under Danish employment law. The applicants argued that they had a disability, and that this reduced notice period was unlawful disability discrimination, in breach of the EU Framework Directive. The case was brought by two applicants, one of whom (Ms Ring) had developed back pain. The employer did not take measures which might have alleviated her complaints, such as acquiring an adjustable-height desk for her workstation, or offering her part-time working. The second applicant, Ms Werge, had whiplash following a road accident.

EU court: Meaning of disability

The EU court adapted the definition of ‘disability’ it had previously given in the 2006 case of Chacon Navas. This adaptation was in the light of the UN Convention on the Rights of Persons with Disabilities (CRPD) which the European Union had ratified in 2010. The court said:

38 … the concept of ‘disability’ must be understood as referring to a limitation which 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.

39 In addition, it follows from the second paragraph of Article 1 of the UN Convention that the physical, mental or psychological impairments must be ‘long-term’.

The court in this case had been asked particularly about the position of an illness (see below), though of course “disability” is not limited to illness. The court said about illness:

47 … the concept of ‘disability’ in Directive 2000/78 must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which 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…. On the meaning of disability, see further above Summary and comment.

Importance of the UN Convention (CRPD)

The EU court said that the provisions of the CRPD were now an integral part of the European Union legal order The EU’s Framework Employment Directive must now, as far as possible, be interpreted in a way that is consistent with the CRPD.

The court set out its own previous definition of ‘disability, and the CRPD wording which led to the change:

36 The concept of ‘disability’ is not defined by Directive 2000/78 itself. The Court therefore held, in paragraph 43 of its judgment in “Chacón Navas“, that the concept 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.

37 The UN Convention [ie. the CRPD], which was ratified by the European Union by decision of 26 November 2009, in other words after the judgment in “Chacón Navas” had been delivered, acknowledges in recital (e) 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’. Thus the second paragraph of Article 1 of the convention states that 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’.

EU court: Further points on meaning of ‘disability’

Illness

The court said that “disability” is not limited to disabilities that are congenital or result from accidents. It can include disability caused by illness, curable or incurable, provided the illness entails the relevant limitation (see para 47 quoted above).

The Advocate General (at para 37 of her Opinion), expands on the position regarding a curable illness. Basically it will depend whether the limitation is long-term.

Disabled person may still be fit to work

The applicants in this case were fit to work part-time. The court rejected an argument by the employers that this was inconsistent with them having a disability. A disability did not imply complete exclusion from work or professional life.

Disability is not dependent on type of reasonable adjustment

The Danish court had asked whether something can be a disability if it does not require special aids, but just means that the person is unable to work full-time.

The EU court said yes. ‘Disability’ does not depend on the nature of accommodation measures, such as whether special equipment is required. The definition of ‘disability’ comes before any issue of reasonable accommodation under Article 5 of the directive. Reasonable accommodation is a consequence of the person having a ‘disability’, not part of the definition of disability.

No minimum level of severity?

This was a point raised by the Advocate General rather than the court itself. See below No minimum level of severity?

EU court: Reasonable accommodation (reasonable adjustments)

Reduction in working hours can be a reasonable accommodation

The EU court was asked whether a reduction in hours, such as working part-time, can be a reasonable accommodation. The court said yes it can.

A reduction in hours could fall within ‘patterns of working time’ in recital 20 of the Framework Employment Directive. In any event, though, the list in recital 20 is not exhaustive.

(Recital 20 says; “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.”)

UN Convention

The EU court again took into account the CRPD (i.e. the UN Convention), this time to give a broad interpretation to the duty to make reasonable accommodation:

53. In accordance with the second paragraph of Article 2 of the UN Convention, ‘reasonable accommodation’ is ‘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’. It follows that that provision prescribes a broad definition of the concept of ‘reasonable accommodation’.

54. Thus, with respect to [Framework Employment] Directive 2000/78, that concept must be understood as referring to the elimination of the various barriers that hinder the full and effective participation of persons with disabilities in professional life on an equal basis with other workers.

It may be of particular significance in future cases that the court saw the aim as being to secure full and effective participation in professional life, on an equal basis others.

General comments by the EU court on reasonable accommodation

The EU court commented that the accommodation must be reasonable, in that it must not constitute a disproportionate burden on the employer. In the present case, it was for the national court to assess whether a reduction in working hours would be a disproportionate burden on the employers.

It followed from recital 21 that account must be taken in particular of the financial and other costs entailed by such a measure, the scale and financial resources of the undertaking, and the possibility of obtaining public funding or any other assistance.

The EU court also pointed out that, as stated in recital 17, the directive does not require the recruitment, promotion or maintenance in employment of a person who is not competent, capable and available to perform the essential functions of the post concerned, without prejudice to the obligation to provide reasonable accommodation for people with disabilities, which includes a possible reduction in their hours of work.

EU court: Lawfulness of Danish employment provision

Under Danish employment law, after 6 months employment the employer had to give an employee 3 months notice (or sometimes more) to terminate the employment. However, there was special provision if an employee had received his salary during periods of illness for 120 days in total during any period of 12 consecutive months. In this case, a written agreement could stipulate that the employee could be dismissed with one month’s notice.

If there is failure to make reasonable accommodation

The Danish court asked the EU court whether this was lawful if those absences were a consequence of the employer’s failure to make reasonable accomodation under Article 5 of the Framework Employment Directive. The EU court said no, it would breach the directive.

Direct or indirect discrimination?

What if the employee’s absence was not due to a failure to make reasonable accommodation? Was it lawful to apply the reduced notice period after an absence due to illness attributable wholly or partly to a disability?

The EU court said this was not direct discrimination, because the reduced notice applied in the same way to disabled and non-disabled employees who had been absent for more than 120 days due to illness.

However, there was potential indirect discrimination. The 120-day rule was liable to place disabled workers at a disadvantage. So the question was whether the difference of treatment was objectively justified by a legitimate aim, and whether the means used to achieve that aim were appropriate and did not go beyond what was necessary to achieve the aim pursued by the Danish legislature./

The EU court accepted that the provision had a legitimate aim: broadly to encourage employers to recruit and keep workers who had repeated absences due to illness.

However, “the risks run by disabled persons, who generally face greater difficulties than non-disabled persons in re-entering the labour market, and have specific needs in connection with the protection their condition requires, should not be overlooked…” The EU court left it to the Danish court to assess whether the provision did not go beyond what was necessary to achieve the legitimate aim.

Advocate General: No minimum level of severity?

The Advocate General’s Opinion touched on the severity of a disability. She said there is nothing in the wording of Directive 2000/78 to indicate that the disability has to have a certain degree of severity (para 35, quoted below). However this did not have to be definitely resolved here, as it had not been addressed in the proceedings.

An Advocate General’s opinion is not binding but can be persuasive.

33. A distinction must therefore be drawn between sickness as the possible cause of the impairment and the impairment resulting from sickness. A permanent limitation resulting from sickness which hinders participation in professional life is also covered by the protection of the directive.

34. The present cases concern physical impairments that manifest themselves inter alia in pain and lack of mobility. The distinction between sickness and disability is therefore easier to draw in these cases than in the case on which the Supreme Court of the United States of America had to rule, where it held that even an asymptomatic HIV infection may constitute a disability within the meaning of the ADA 1990. Whether a person’s complaints constitute a limitation in a particular set of circumstances is a matter for assessment by the court of the Member State.

35. There is nothing in the wording of Directive 2000/78 to indicate that its scope of application is limited to a certain degree of severity of disability. (18) Since, however, this issue has been neither raised by the referring court nor discussed by the parties to the proceedings, it does not need to be definitively resolved here.

Footnote 18: – The European Court of Human Rights, too, has recognised sickness from diabetes mellitus type 1, which the national authorities considered to be minor, as a disability for the purposes of protection against discrimination: Glor v. Switzerland, no 13444/04, ECHR 2009.

Advocate General’s opinion. Note that this Opinion is not binding but can be persuasive.

For discussion of this, see below My comment.

My comments

Meaning of ‘disability’

Extended meaning of “normal day-to-day activities”

Already before the Ring decision, the 2006 EU court decision in Chacón Navas, whose definition of “disability” focused on participation in professional life, had influenced the Employment Appeal Tribunal in Britain to give a wider meaning to “normal day-to-day activities” in employment claims: see Disability: ‘Normal day-to-day activities’>Employment claims. As discussed at that link, this can be helpful for stammering, particularly as regards recruitment and promotion – eg it could be argued that a job interview is a “normal day-to-day activity”.

The modified definition of disability in Ring has the same focus, so the previous EAT approach remained valid and was continued by later EAT cases citing the Ring definition of disability, eg Sobhi v Commissioner of Police of the Metropolis in May 2013.

From 1st January 2024, the supremacy of EU law in Britain (so far as it remained) was largely repealed, but from the same date the Equality Act 2010 (EqA) was amended to preserve the wider meaning of “normal day-to-day activities”. So, broadly, the wider definition of “disability” in 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.

Social model

It was very welcome that the EU court modified its definition of “disability” to take account of the social model, as set out in the UN Convention. The EU court’s wording “in interaction with various barriers” should presumably be read in the context of the “attitudinal and environmental barriers” mentioned in the UN Convention.

Many disabled people, including those who stammer, face barriers due to the attitudes of employers and others. For example: seeing a stammer an employer may turn down a job applicant despite the person being perfectly capable of doing the job well.

It was not clear what practical implications the EU court’s decision on this in Ring would have. The social model was not important to the facts of this particular case. The Advocate General’s comments quoted above under No minimum level of severity? perhaps gave a clue as to how the law could develop. She mentioned asymptomatic HIV infection, and in the next paragraph suggested (without deciding) that there may be no minimum level of severity for a disability. Asymptomatic HIV is a classic example of a condition where people’s attitudes can be a major barrier, but where the condition itself will hardly ever affect the person’s ability to do a job.

Cases on whether there is a “disability” under the EqA definition often turn on whether the impairment has a ‘substantial’ effect on ability. It would be a positive development (to my mind) if that British definition of ‘disability’ were to move away from the effect on a person’s abilities, so as to recognise that even where the impairment does not have this “substantial effect” the person may be disabled by people’s attitudes. However the Ring decision did not have this development in Britain, and following Brexit will not now do so.

(Note on HIV: HIV infection is classed as a disability under EqA. However, that is because HIV is specifically mentioned in the legislation. Principles developed by the EU court should apply generally, to any impairment.)

Sickness absence due to disability

The EU court judgment (from para 75) implies that a sickness absence policy which triggers an adverse consequence after a certain time off sick may be indirect discrimination against disabled employees, if it does not distinguish between disability-related absence and other absence. The absence policy would then be unlawful unless objectively justified. For example, there will be the question whether the policy goes beyond what is necessary to achieve the legitimate aim. The court says: “…a worker with a disability has the additional risk of an illness connected with his disability. He thus runs a greater risk of accumulating days of absence on grounds of illness, and consequently of reaching the 120-day limit…” (para 76 of the judgment).

UK cases on sickness absence policies have previously focused on the reasonable adjustment duty (Equality Law Reports, commentary, May 2013), and more recently s.15 EqA. See also Excessive sick leave? Indirect discrimination may well continue to be unimportant as regards absence policies in Britain, because it tends to be easier to claim reasonable adjustments and/or s.15, as happened in Griffiths v Secretary of State for Work and Pensions.

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