We are delighted to welcome this post from Eilionoir Flynn, a Senior Research Fellow at the Centre for Disability Law and Policy in Galway, Ireland. It will be cross-posted at the Human Rights in Ireland Blog.
Yesterday, the Court of Justice of the European Union handed down its decision in the joined cases of Ring and Skouboe Werge (see judgment here). This ruling is particularly significant as it represents the first decision on the definition of disability under the Framework Directive on Employment 2000/78 since the EU concluded the UN Convention on the Rights of Persons with Disabilities (CRPD) in 2010. In essence, the Court moved away from the restrictive definition it adopted Chacón Navas, and instead interpreted the Framework Directive in light of Article 1 CRPD, which states 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.
The facts of the joined cases involved two women who were dismissed from employment when they returned to work following a period of sick leave. Ms. Ring was dismissed after sick leave she took due to constant lumbar pain which could not be treated. Ms Skouboe Werge took sick leave due to whiplash injuries she received in a road traffic accident. The reasons provided for the employers for both dismissals were that the applicants could no longer carry out full time employment due to illness. The employers argued that such dismissals are provided for under Danish law, if the employee had received her salary during periods of illness for a total period of 120 days during any period of 12 consecutive months.
The trade union which brought claims on behalf of the applicants argued that both employees fell within the scope of the Employment Equality Directive as disabled persons, and that the respective employers should have offered both employees reduced working hours, as a ‘reasonable accommodation’ under the Danish Anti-Discrimination Law transposing the Directive, rather than dismissing them. The Danish law states in paragraph 2a 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, or to enable a person with a disability to undergo training. This does not however apply if such measures would impose a disproportionate burden on the employer. This burden shall not be regarded as disproportionate if it is sufficiently remedied by public measures.”
In Chacón Navas, the Court distinguished between illness or ‘sickness’ and disability, stating that “the legislature deliberately chose a term which differs from ‘sickness’. The two concepts [disability and sickness] cannot therefore simply be treated as being the same.” The Court stated that 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.” Where illness or sickness did not entail such a limitation, it could not therefore come within the definition of disability.
In yesterday’s ruling the Court did not set aside its decision in Chacón Navas, but did point out that this previous ruling was adopted prior to the entry into force of the CRPD – and that “the primacy of international agreements concluded by the European Union over instruments of secondary law means that those instruments must as far as possible be interpreted in a manner that is consistent with those agreements.” Therefore, the Court read ‘disability’ in the Framework Directive to reflect Article 1 of the CRPD as stated above – which provides an inclusive, non-exhaustive list of impairments, which when combined with societal barriers, can constitute disability.
The Court also held that a reduction in working hours would fall within the type of reasonable accommodation to disabled people prescribed by the Employment Equality Directive, but acknowledged that it fell to the national court to determine whether such a reduction would constitute a disproportionate burden for the employers involved. With regard to the shortened period of notice provided for in Danish law for such dismissals (following a period of sick leave in which an individual received her salary), the Court also held that this could constitute indirect discrimination on the ground of disability. In order to justify such indirect discrimination, the Court found that the national court would have to consider whether Danish law was pursued a legitimate aim, and was proportionate to that aim.
This ruling is particularly significant in so far as it affirms that the CRPD takes precedence over EU secondary law, and that such laws must be, as far as possible, read in a manner that conforms with the CRPD. Such a ruling will have relevance far beyond the Employment Equality Directive, and could have a positive impact on the application of all secondary law which affects persons with disabilities – including in the areas of transport, the internal market and funding provided by the EU, such as the Structural Funds (see more on these issues here). It is a promising decision which will be welcomed by European disability activists as an important step to deepen understanding of the relationship between the CRPD and substantive EU law, as applied to persons with disabilities.