New CJEU ruling on disability discrimination

On 11 April, the Court of Justice of the European Union (CJEU) delivered a judgment which establishes the precedence of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) over EU secondary law.

The combined cases of Ring and Skouboe Werge were referred to the CJEU by the Danish Court after two women were dismissed from employment when they returned to work following a period of sick leave.

A trade union brought the claims on behalf of the two women and argued that their illness should be considered a disability and as such they should fall under the Employment Equality Directive. It was argued that the employers should have offered both employees reduced working hours, as a ‘reasonable accommodation’ under the Danish anti-discrimination law transposing the Directive.  In addition, the trade union argued that the Danish legislation which allowed for dismissal following a period of sick leave was contrary to the CRPD.

The Court considered these issues and issued a wider definition of disability than had been previously lay down by the Court. In Chacón Navas, the Court made the distinction between illness or ‘sickness’ and disability. However, in this judgment the Court interpreted disability in light of Article 1 of the CRPD. This 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.” In this instance, the Court did not set aside its decision in Chacón Navas, but pointed out that this previous ruling was adopted prior to the entry into force of the CRPD.

In considering ‘reasonable accommodation’ and the suggested reduction in hours, the Court held that such a provision would fall within the type of reasonable accommodation to disabled people prescribed by the Employment Equality Directive, but held that it fell to the national Court to determine if such an accommodation would constitute a disproportionate burden for the employers.

Lastly, the Court considered the Danish legislation and the shortened period of notice provided for dismissals following a period of sick leave and held that such a provision could constitute indirect discrimination on the ground of disability. The national Court would have to consider whether Danish law pursued a legitimate aim and that this legislation was proportionate to that aim.

This ruling is significant because it is the first decision on the definition of disability under the Framework Directive since the EU implemented the CRPD.

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