Disability

In reference to Directive 2000/78/EC, which establishes a general framework for equal treatment in employment and occupation, the European Court of Justice (ECJ) ruled (Sonia Chacón Navas v. Eurest Colectividades SA, Case C-13/05) that

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.

By using the concept of ‘disability’ in Article 1 of the directive, the legislature deliberately chose a term that differs from ‘sickness’. The implication is that the two concepts cannot be treated as being the same.

According to Article 5 of Directive 2000/78/EC, reasonable accommodation for disabled persons shall be provided in order to guarantee compliance with the principal of equal treatment in relation to persons with disabilities. This provision means:

that employers shall take appropriate measures where needed in a particular case to enable a person with a disability to have access to, participate in, or advance in employment…. unless such measures would impose a disproportionate burden on the employer.

The ECJ ruling in the Chacón case interprets that the importance attached to measures to adapt the workplace to the disability demonstrates that the Community legislation envisaged situations in which participation in professional life is hindered over a long period of time. However, the directive does not indicate that workers are protected against discrimination on grounds of disability in cases of sickness and based on these considerations, the ECJ decided that a person that has been dismissed by her/his employer solely on the grounds of sickness did not fall within the general framework laid down for combating discrimination on grounds of disability by Directive 2000/78/EC.

Rights to protection against discrimination on the grounds of disability were further strengthened through the signing, on 30 March 2007, of a UN treaty on disability rights by the European Community. The Convention on the rights of persons with disabilities recognises, at an international level, that disability is a human rights issue. The text of the Convention recognises the obligation to make ‘reasonable accommodation’ a principle also established under Directive 2000/78/EC and furthermore acknowledges that women with disabilities, in particular, are more likely to suffer from multiple forms of discrimination. It accordingly calls for measures combining the mainstreaming of gender issues and specific gender-sensitive measures in the disability field. In the light of the new convention, the European Commission is examining whether it needs to adopt measures of its own to prevent and combat discrimination beyond the area of the labour market. In December 2007, it will present a Communication putting forward the Commission’s next action plan on disabilities, aimed at implementing the UN Convention. Member States must also sign the convention individually as signature constitutes the first step of becoming formally a party to the convention.

It should be noted that under EU law the obligation of the employer to provide ‘reasonable accommodation’ for disabled persons does not include the recruitment, promotion and maintenance in employment of an individual who is not competent, capable and available to perform the essential functions of the post concerned. The ECJ outlined that ‘sickness’ as such cannot be regarded as a ground in addition to those in relation to which the directive 2000/78/EC prohibits discrimination. In contrast, the Spanish court, which referred the questions on the interpretation of the directive to the ECJ, took the view that workers must be protected in a timely manner under the prohibition of discrimination on grounds of disability, given that sickness is often capable of causing an irreversible disability.

In the report on the situation of disabled people and the European Action Plan 2006–2007 (COM(2005) 604 final), the European Commission uses data from the European Labour Force Survey 2002 ad hoc module on disability which collected data concerning the employment of disabled people for the European Year of People with Disabilities 2003. In the survey, disabled persons are defined as ‘those who stated that they had a long-standing health problem or disability (LSHPD) for 6 months or more or expected to last 6 months or more’. According to the ad hoc module, 44.6 million persons – around 16% of the working age population in the EU in 2002 –reported that they have a long-standing health problem or disability. The employment rate of disabled persons is 40%, in contrast to 64.2% for non-disabled persons. The inactivity rate of disabled persons is twice that of non-disabled persons. Only 15.9% of disabled people in employment are provided with some assistance to work. According to the research, 43.7% of respondents think they could work if they received adequate assistance.

A report for the European Foundation for the improvement of Living and Working Conditions on Employment and disability focuses on promoting the social inclusion of people with chronic illnesses or disability in employment. In the report, disability is seen as a dynamic process that increases with age and concerns many people with chronic illness. It can happen to persons of any age who develops a health condition that affects work capacity. ‘Work disability’ is understood as the failure to return to work after illness or injury, regardless of the cause. (For more details, see the Annual review of working conditions in the EU 2006-07)