European briefing | A new approach to disability discrimination

The ECJ's decision in Case C-13/05 Chacón Navas [2006] ECR I-6488 is the leading case on the meaning of disability for the purposes of directive 2000/78. A recent judgment in Joined ?Cases C-335/11 and C-337/11 Ring (2nd Chamber, 11 April 2013) has clarified that earlier decision.

The ECJ was considering two references from Denmark. Danish law, in terms that mirror article 5 of directive 2000/78, required employers to take "appropriate measures" to enable disabled people to "have access to, participate in, or advance in employment", provided that such measures did not impose a "disproportionate burden" on the employer. However, it also permitted an employer to dismiss in some cases of long-term sickness.

Ms Ring, a receptionist, was absent on several occasions during the second half of 2005, suffering from constant lumbar pain which could not be treated. She was dismissed; the following year she was able to return to employment elsewhere, working part-time and with a suitable adjustable-height desk.

Ms Skouboe Werger was employed as an office assistant. She was the victim of a road accident and suffered whiplash injury. After more than a year during which she sometimes worked part-time but was often absent, she was dismissed. A subsequent assessment concluded that she was capable of working for about eight hours a week at a slow pace.

In both cases, the employees argued that they were disabled and that, rather than dismissing them, the employer should have considered offering them reduced working hours by way of "reasonable accommodation" under article 5. The Danish court asked the ECJ to consider two sets of questions: were the employees disabled? And could a reduction in working hours and protection from dismissal be among the measures required by article 5.

Sickness as a cause

In Chacón Navas the ECJ declined to equate "sickness" with "disability". A disability was a "limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life". Sickness, said the ECJ, was different; there was nothing to suggest that an employee should be protected "as soon as they develop any kind of sickness", and dismissal on ground of sickness did not fall within the directive's prohibition.

In Ring the ECJ did not so much over-rule that decision, as explain its limits. Just because sickness is not the same as disability does not mean that it may not be a cause of disability. As advocate general Kokott put it, the court did not, in Chacón Navas, intend to restrict the directive's reach only to disabilities that are "congenital or result from accidents".

All that it had intended to point out is that sickness as such is not disability. That did not mean that sickness might not result in disability.

The ECJ therefore emphasized three things. First, a curable or incurable illness which hindered the full and effective participation of a person in professional life will, if the limitation is a long-term one, amount to disability. Secondly, in this context the key question is whether a person's participation is "hindered", not prevented. A person whose state of health limits the amount of work they can do is as surely disabled as someone who cannot work at all.

Thirdly, and most importantly, the ECJ did put a gloss on the definition of disability it had used in Chacón Navas. There it had referred to a condition which "hinders the participation of the person concerned in professional life". Now it has added the important gloss "on an equal basis with other workers". Those additional words are taken from the UN Convention. In fact the UN Convention is arguably broader, because it focuses not just on participation in professional life, but in society. Although the ECJ remains focused in this context on professional life, the additional words are undoubtedly intended to emphasize that the inquiry is not supposed to be merely technical, but to encompass all aspects of professional life, and

Reasonable accommodation

When it came to reasonable accommodation, the ECJ was able to provide less guidance, because assessment is ultimately for the national court. It was clear, however, that the duty can require a change in the pattern of work, and that reducing the number of hours worked by a disabled person could not be ruled out. An employer is not required to retain a person who cannot perform a post's essential functions. But what is "essential" should not be too broadly defined. Creative thinking is required. Ms Ring's employer in fact advertised a part-time position which she might have been able to fulfil, and the ECJ pointedly emphasized that there was nothing to explain why Ms Ring could not have been suitable for that post, or why it was not offered to her.

If an employer dismissed a disabled person in order to avoid making reasonable adjustments, then that dismissal could not be permitted by national law.

Chacón Navas could be interpreted as inviting a rather narrow approach to disability discrimination. If so, Ring dispels that false impression, and demonstrates that the ECJ will adopt a broad approach consistent with the UN Convention. The focus is on practical steps which will facilitate equality.

Employers should keep in mind the primary aim: to eliminate or mitigate those obstacles which prevent disabled people from participating in professional life on an equal basis with others.