In a recent judgement “DW” (C‑397/18), the CJEU has applied its broad definition of ‘disability’ in light of the UN Convention on the Rights of Persons with Disabilities. An occupational illness can be qualified as a disability in the framework of EU discrimination law.
In its judgement of 11 September 2019 (C‑397/18, DW/Nobel Plastiques Ibérica SA), the CJEU had to rule on a preliminary request by the labour court of Barcelona. In the case at hand, the Spanish company Nobel Plastiques Ibérica SA, which manufactures automobile parts and accessories (plastic pipes and profiles) had dismissed a female employee, “DW”, who had a productivity of less than 60 % and an absenteeism rate of almost 70 %, inter alia, as a result of an occupational disease (epicondylitis or tennis elbow).
DW was also recognised as being "particularly susceptible to occupational risks" according to Spanish Law. With a view to effectuate dismissals for objective reasons, Nobel Plastiques Ibérica established the following four criteria applicable for the year 2016: working in processes for the assembly and design of plastic tubes, productivity of less than 95 %, low multipurpose capabilities within the company and a high level of absenteeism due to illness. As DW fulfilled all the criteria, she and nine other workers were dismissed. However, according to the Spanish social inspectorate, the company did not undertake the necessary efforts to reasonably accommodate the tasks of DW to her state of health.
First, the CJEU answers the preliminary question whether Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that the state of health of a worker who is categorised as being particularly susceptible to occupational risks, within the meaning of national law, which prevents that worker from carrying out certain jobs on the ground that such jobs would entail a risk to his or her own health or to other persons, falls within the concept of ‘disability’ within the meaning of that directive.
The CJEU refers to the landmark case of HK Danmark (also called Ring & Skouboe Werge, C 335/11 and C 337/11) of 11 April 2013. In this case, two employees were partially incapacitated for work under their current employment contract, respectively as a result of illness and an accident. Both workers were subsequently dismissed by their employer. Just like in HK Danmark, the CJEU refers to the definition of Handicap of the UN Convention on the Rights of Persons with Disabilities, which the EU has ratified. The CJEU considers the provisions of the UN Convention as an integral part of the European Union legal order. As the EU Directive 2000/78 also deals with the protection against discrimination based on disability, the concept of disability in Directive 2000/78 must, as far as possible, be interpreted in a manner consistent with the UN Convention.
In conformity with the UN Convention, a disability should be defined as “a limitation of capacity which results in particular from long-term physical, mental or psychological impairments which, in interaction with various barriers, may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers”. Therefore, the concept of ‘disability’ must be understood as referring to a hindrance to the exercise of professional activity, not to the impossibility of exercising such activity. The state of health of a person with a disability who is fit to work, albeit only part time, is thus capable of being covered by the concept of ‘disability’. Consequently, an occupational illness, can be qualified as a disability if it meets the mentioned criteria. However, the CJEU refuses to automatically categorize the Spanish legal qualification of an employee as "particularly susceptible to occupational risks" as falling under the concept of ‘disability’. It is up to the national judge to analyse the concrete situation.
Next, the company claimed it had previously reasonably accommodated DW’s work, by assigning her preferentially, tasks involving the processing of small tubes, which were less hazardous to health than tasks involving the manipulation of big tubes. The CJEU states that dismissal for 'objective reasons' of a disabled worker on the grounds that he or she meets the selection criteria taken into account by the employer for the purposes of determining the persons to be dismissed, constitutes an indirect discrimination on the grounds of disability within the meaning of Directive 2000/78, unless the employer has first made reasonable accommodation in respect of that employee, in order to ensure compliance with the principle of equal treatment in relation to persons with disabilities, which is a matter for the national courts to determine.