European Court ruling on case of dismissal on grounds of sickness

On 11 July 2006, the European Court of Justice (ECJ) re-defined its interpretation of the concept of ‘disability’ in a case brought against a catering company by a Spanish worker. The court ruling makes it clear that the protection of employees against discrimination on the grounds of disability, guaranteed under the Framework Directive, also applies in the case of dismissals. However, the court also made an important distinction between the concept of disability and sickness, stipulating that they should not be treated as the same thing. Accordingly, dismissal for reasons related to sickness does not automatically amount to a dismissal on the grounds of disability.

Legislation protecting disabled persons

Council Directive 2000/78/EC of 27 November 2000 established a general framework for equal treatment in employment and occupation and for combating discrimination on a number of grounds, including disability. The directive was the first EU measure to cover the issue of disability discrimination in employment. However, no actual definition of ‘disability’ was included within the text. The directive stipulates that employers should take measures to counter the disadvantage presented by having a disability. Article 2(b) states that ‘as regards persons with a particular disability, the employer, or any person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures’. These measures must be in line with Article 5 of the directive, which obliges an employer to make ‘reasonable accommodation in relation to persons with disabilities, in order to eliminate disadvantages entailed by such provision, criterion or practice’. Thus, unless defined in national legislation, there is no standard definition of disability to be taken from the directive itself.

ECJ case

The recent ECJ ruling concerned the case of Spanish employee Sonia Chacon Navas who had been employed by the catering company Eurest. Ms Navas had been off work for eight months and had been certified as being ‘unfit for work’ on the grounds of sickness; according to the public health service that was treating her, she was not in a position to return to work in the short term. Her employers therefore gave her notice of dismissal, with an offer of financial compensation. Ms Navas took a legal claim against Eurest on the basis that her dismissal amounted to disability discrimination. The Spanish court, to which the claim was taken, took the view that since sickness could lead to an irreversible disability, a dismissal on the grounds of sickness could amount to a form of disability discrimination. However, in the absence of a definition of disability under Spanish law, the court referred the case to the European Court of Justice (ECJ).

Defining disability

In [Sonia Chacon Navas v Eurest Colectividades Case C-13/05](http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&Submit=Rechercher&alldocs=alldocs&docj=docj&docop=docop&docor=docor&docjo=docjo&numaff=C-13/05 &datefs=&datefe=&nomusuel=&domaine=&mots=&resmax=100), the ECJ noted that, in the absence of a clear definition within the directive itself, it was necessary that the disability concept has an ‘autonomous and uniform’ interpretation throughout the EU. In the ECJ’s view, a ‘disability’ in the context of the directive had to 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’. The ECJ also noted that, when setting out the protection contained within the Framework Directive, the legislature had deliberately chosen to use a term that differed from ‘sickness’. This implied that sickness and disability were not synonymous and that they should not be treated as the same thing.

The ECJ concluded that ‘disability’ implied something that hindered professional life over a long period of time. It drew inference from the fact that the directive attached importance to measures adapting the workplace to the disability and that this led to the conclusion that the discrimination had to be based on something that was envisaged as being long-term.

Differentiating between disability and sickness

Ms Navas had been dismissed for sickness reasons, and in the view of the ECJ, someone dismissed solely on account of sickness could not fall within the general framework laid down in the directive for combating discrimination on grounds of disability. However, while rejecting Navas’ claim on the facts, the court also made it clear that in no way did its ruling imply that a person’s dismissal on disability grounds would not fall within the definition of discrimination provided for by the directive. The fact that the directive obliges employers to provide reasonable accommodation for persons with disabilities must mean that where such reasonable accommodation has not occurred, any dismissal would be contrary to the directive, even where the dismissal was as a result of the individual not being competent, capable or available to perform the essential functions of the post.

Sonia McKay, Working Lives Research Institute for AWWW GmbH