- Date:
- 23 Apr 2013
The EU Court recently ruled in two Danish cases about dismissal due to sickness referred by the Copenhagen Maritime and Commercial Court
The EU Court recently ruled in two Danish cases about dismissal due to sickness referred by the Copenhagen Maritime and Commercial Court.
Employers are not allowed to discriminate against employees on grounds of disability. In addition, employers must take reasonable measures to help disabled employees to obtain or keep a job. This follows from the Employment Directive, which is implemented into Danish law by way of the Danish Anti-Discrimination Act. After the implementation of the Directive, there have been several cases concerning the definition of disability as a concept and the measures which employers are required to take to allow disabled employees to keep their job.
Two cases are currently pending before the Copenhagen Maritime and Commercial Court. The cases concern two employees who were both given notice of termination with the short notice permitted under the Danish Salaried Employees Act for employees who have been off sick for a consecutive period of 120 days. One of the employees suffered from chronic back pains which meant that she could only work part-time. The other employee suffered from a whiplash injury sustained in connection with a traffic accident, and she later went on full-time sick leave. After being dismissed, she was awarded national incapacity pension.
Both employees argued that their dismissal was in conflict with the prohibition of discrimination on grounds of disability. The Copenhagen Maritime and Commercial Court decided to refer a number of questions to the EU Court for a preliminary ruling. Some of the questions concerned the definition of disability as a concept and whether part-time work can be one of the measures which employers are required to offer.
Disability as a concept
The EU Court has now ruled that "disability" under the Employment Directive must be taken as including a condition caused by a medically diagnosed curable or incurable illness where the illness in interaction with various barriers may hinder the person in question in engaging in business activity on an equal basis with other workers as a result of, among other things, physical, mental or psychological impairments, where such incapacity is long-term in nature. In addition, the EU Court ruled that the nature of the measures to be taken by employers is not decisive for considering that a person's state of health is covered by the concept of “disability”.
The EU Court has now ruled that "disability" under the Employment Directive must be taken as including a condition caused by a medically diagnosed curable or incurable illness where the illness in interaction with various barriers may hinder the person in question in engaging in business activity on an equal basis with other workers as a result of, among other things, physical, mental or psychological impairments, where such incapacity is long-term in nature. In addition, the EU Court ruled that the nature of the measures to be taken by employers is not decisive for considering that a person's state of health is covered by the concept of “disability”.
Part-time work as appropriate measure
According to the Employment Directive, adapting patterns of working time may be one of the appropriate measures to be taken by the employer. The EU Court held, in line with the Advocate General, that this concept must not be interpreted restrictively. As a result, the concept may cover all types of changes of an organisational nature, including a reduction in working hours. However, the EU Court did not address the question of whether a reduction in working hours will place a disproportionate burden on the employer. This will depend on an assessment in each individual case, to be made by the national courts.
According to the Employment Directive, adapting patterns of working time may be one of the appropriate measures to be taken by the employer. The EU Court held, in line with the Advocate General, that this concept must not be interpreted restrictively. As a result, the concept may cover all types of changes of an organisational nature, including a reduction in working hours. However, the EU Court did not address the question of whether a reduction in working hours will place a disproportionate burden on the employer. This will depend on an assessment in each individual case, to be made by the national courts.
Norrbom Vinding notes
- that the EU Court's ruling is surprising in relation to the definition of disability as a concept because it holds that also a curable illness may constitute a disability;
- that, nevertheless, the illness must result in a long-term limitation in the employee's ability to participate in business activity on an equal footing with other workers, as already ruled by the Copenhagen Maritime and Commercial Court in the two main proceedings; and
- that a reduction in working hours may be one of the appropriate measures which employers are required to take, unless it would place a disproportionate burden on the employer.
