European Court of Justice takes an important decision for employees with disabilities

11 April 2013

On Thursday 11 April 2013, the European Court of Justice took an important judgment in Joined Cases C-335/11 and C-337/11 Ring and Skouboe Werge. "HK Danmark”, a Danish trade union, brought two actions for compensation on behalf of Ms Ring and Ms Skouboe Werge, because they were dismissed with a shortened notice period. HK Danmark claims that their employers were required to offer them a reduction in working hours because of their disability. The trade union also argues that the national legislation on the shortened notice period cannot apply to those two employees, since their absence because of illness was caused by their disability.

The Sø- og Handelsret, Maritime and Commercial Court in Denmark, which is hearing the two cases, asked the Court of Justice to clarify the concept of disability. The questions also arise whether a reduction in working hours may be regarded as a reasonable accommodation measure and whether the Danish legislation on the shortened notice period for dismissal is contrary to EU law, namely the directive on equal treatment in employment and occupation creating a general framework for combating, in particular, discrimination on grounds of disability (Employment Directive).

Read more in the European Court of Justice’s media release

WHY THIS IS AN IMPORTANT DECISION

EDF welcomes the European Court’s judgment considering it as a very important one for the rights of persons with disabilities in the work place. The importance for EDF lies in the following elements:

  • The Court writes that the Employment Directive must be interpreted in a manner consisted with the UN Convention on the Rights of Persons with disabilities (UNCRPD).

  • Since the Employment Directive does not define 'disability', the Court had in an earlier judgment (Chacón Navas v Eurest Colectividades SA (2006) C-13/05) given some guidance on the concept of disability and had set thereby an autonomous and uniform definition for disability in the EU. The Court stated that ‘disability’ must be understood as a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life, and which will probably be for a long time. The Court also stated that ‘disability’ is different from ‘sickness’, and there is 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’. The Court hereby made a distinction between ‘disability’ and ‘sickness' and clarified that ‘sickness’ is not covered by the Employment Directive.

However, by using these words, the Court took a medical approach to disability, focusing on the person's impairment. This approach has been widely criticised also by EDF. The new judgment rectifies the situation and states that the concept of disability must be understood as in article 1 of the UN CRPD and takes thus the social model approach to disability. Disability is therefore understood as the result of the interaction between the individual’s impairment and the barriers created by society (social, environmental and attitudinal).

  • The Court stated that a reduction in working hours may constitute a reasonable accommodation as defined in the Employment Directive and in the UN CRPD. The employer is required to take appropriate measures to enable a person with a disability to have access to, participate in, or advance in employment. These measures can both entail organisational measures, such as reduction of working hours. Moreover, whenever the employer has the possibility to ask for public assistance (in terms of funding of a part of the employee's salary), then the employer cannot refuse to grant the employee with a disability the reasonable accommodation.

  • Finally, the judgment is also very important because it does not allow an employer to dismiss an employee who was unable to work for a long period of time due to his or her disability without looking into the possibility of providing reasonable accommodation for that employee and re-integrating the person in the workplace.

Contact

Email this page
Subscribe to