Meaning of disability and reasonable accommodation
Ring C-335/11 and Werge C-337/11, 11 April 2013
Facts:
Ms Ring was employed by a housing association in Denmark. During a period of over four months from June to November 2005 she took sick leave for constant lumbar pain. Ms Werge was employed as an office assistant for a company Pro Display. In 2003 she was the victim of a road accident and suffered whiplash injuries. She went on full time sick leave from January 2005 to April 2005.
Both Ms Ring and Ms Werge were dismissed by their employers with one month’s notice pursuant to a Danish employment law that permitted the dismissal of employees on those terms who took sick leave for a total period of 120 days during a period of 12 consecutive months. This was less than the normal three month notice period for dismissals where a person had been employed for more than six months.
After Ms Ring was dismissed she started a new job working 20 hours a week. After Ms Werge was dismissed she underwent an assessment which concluded she was capable of working for about 8 hours a week. Ms Werge was subsequently granted early retirement on the grounds of her incapacity to work.
Proceedings were brought on behalf of Ms Ring and Ms Werge claiming that both were suffering from a disability and that the employers were required to offer them reduced working hours in compliance with the requirement to make reasonable accommodation for disabled persons under Article 5 of the Framework Directive 2000/78/EC.
Findings of the court:
The United Nations Convention on the Rights of Persons with Disabilities (CRPD) was approved by the European Union on 26 November 2009. As the CRPD is an international agreement concluded by the EU it is binding on all its institutions, and all EU law including the Framework Directive 2000/78/EC must be interpreted as far as possible consistently with the CRPD.
Meaning of disability:
In relation to the meaning of disability, as there is no definition in the Directive, the court applied the CRPD definition to hold that:
The court also found that a person who has impairments but is only able to work part-time could be a disabled person.
Reasonable accommodation:
Recital 20 of the Directive contains a non-exhaustive list of what may constitute reasonable accommodation for disabled persons in employment. Reduced working hours relates to “patterns of working time” as defined in Recital 20 and can constitute a reasonable accommodation.
As a result, national legislation will not be lawful where it permits the dismissal of a disabled employee on one month’s notice, the person is absent because of illness related to the disability, and the employee could have been provided reasonable accommodation of reduced working hours.
Direct and indirect disability discrimination:
There was no direct disability discrimination as the policy of terminating persons absent due to sickness applied to all employees.
In relation to indirect disability discrimination, the Danish government’s policy did put disabled persons at a particular disadvantage as they were more likely to become sick. The question was whether the policy had a legitimate aim and was proportionate. The policy did serve a legitimate aim of creating a flexible labour market and encouraging recruitment. In relation to proportionality of the policy, there was a need to balance the need of a flexible labour market with the adverse impact the policy would have on disabled person but it was for the national courts to determine this issue.
Implications:
The decision highlights that development in the law on disability discrimination since the Chacon Navas Case C-13/05 which was decided before the CRPD was approved by the EU. The Court directly applied the meanings of disability in the CRPD ensuring consistency in the EU approach and the approach globally.
In relation to reasonable accommodation the decision also emphasised that reduced working hours may be an appropriate accommodation for disabled employees in order that they can continue to work.