24 April 2013

ECJ guidance on the meaning of disability

12:02pm

The ECJ has considered the meaning of disability and the concept of reasonable accommodations (in English law, reasonable adjustments) in the case of Ring v Dansk Almennyttigt Boligselskab and anor. In doing so they have taken account of the UN Convention on the Rights of Persons with Disabilties. The ECJ also confirmed that a person does not have to be totally incapable of work to be disabled and that the origin of the disability is irrelevant provided the disability hinders full and effective participation in professional life and its effects are sufficiently long-term.

The ECJ went on to provide some helpful wording on what a reasonable adjustment is. In summary reasonable adjustments are aimed at eliminating the barriers that hinder the full and effective participation of disabled persons in work on an equal basis with others. A reduction in hours may be a reasonable adjustment if it enables the person to remain in work. It is for national courts to decide if the burden on the employer is disproportionate taking into account costs, the size of the employer’s business and its resources.

The judgment of the ECJ in Ring v Dansk gives us further guidance from the ECJ on the definition of disability. It ruled that disability is a limitation that results in particular from physical, mental or psychological impairments which hinders the participation of the person concerned in professional life and which is likely to last for a long time.

The EU is a signatory to the UN Convention on the Rights of Persons with Disabilities. The Convention states that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others.

Article 1 reads 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”.

Article 2 refers to reasonable accommodations as:

“necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden… to ensure persons with disabilities enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”.

The case which saw the national court make a referral to the ECJ deals with the cases of two Danish employees, Ms Ring and Ms Werge. Both were dismissed for incapacity resulting from back pain which had caused long-term absence. In both cases there was no prognosis indicating when they might be fit for work again. Ms Wenge had suffered a whiplash injury following a car accident. Ms Wenge suffered back pain. Danish law allowed their employers to reduce their notice periods to one month from three on the basis that their absence had endured for more than 120 days. The trade union HK brought disability discrimination claims in the Danish Maritime and Commercial Court. They argued that the employers had failed in the reasonable adjustments duty by failing to offer them reduced working hours instead of dismissing them. HK also argued that the reduced notice period was unlawful because the absence related to disability. The employers argued that the claimants were not disabled and that in any event there was no duty to offer reduced hours. The Danish court asked a number of questions in its reference to the ECJ. They were:

1. Whether a person is disabled if their physical, mental or psychological impairments mean they cannot carry out their work (or can only carry it out to a limited extent)?

2. Whether disability includes conditions caused by a medically-diagnosed incurable illness or a temporary illness which has been medically-diagnosed?

3. Whether a person is disabled where they have reduced functional capacity meaning they cannot work full-time even though they need no special aids to be able to work?

4. Whether a reduction in working hours is capable of being a reasonable accommodation?

5. Whether the Directive precludes a national law permitting a notice period to be reduced even if the absence is caused by disability or if the absence is due to the employer not implementing reasonable accommodations?

The answers were as follows:

1. The concept of disability does not imply the complete exclusion from work or professional life. A person who is fit to work, albeit part-time can still be disabled.

2. Disability is about hindrance not impossibility so it is not intended to be limited to conditions that are congenital or which result from accidents. The origin of the impairment is an irrelevance so long as it has the functional effect of hindering (on a long-term basis).

3. The concept of disability does not depend on the nature of any accommodations that might be made such as special equipment. These measures are the consequence of disability not an element of the definition of it. A person with reduced capacity can be disabled irrespective of how much they work.

4. The concept of reasonable accommodation must be given a broad interpretation. It is about necessary and appropriate modifications which do not impost a disproportionate or undue burden on the employer. RAs are about eliminating barriers which hinder the full and effective participation of disabled employees.

5. The ECJ held that the Directive does preclude a national law allowing a reduced notice period where the absence is caused by the employer not making reasonable accommodations. It is also contrary to the Directive if national law reduces the notice period without being able to show that doing so is a proportionate means of achieving a legitimate aim. Put simply this means that reducing the notice period will be discriminatory unless the employer can provide a means of justifying the conduct.

This case means that national courts should be looking to interpret the disability discrimination laws of their countries so as to give emphasis as to whether disabled employees are being given the opportunity to have full and effective participation in the workforce and to ensuring that barriers which hinder such participation must be addressed. Unfortunately the decision does little to impact the greatest barrier faced by disabled workers which is the attitudes, beliefs and, in the case particularly of mental health conditions, the stigma of disability.


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