Workers who are temporarily unable to work may be considered to have a disability, if the judge finds their incapacity is likely to be long-term, in view of the scientific and medical evidence presented (ECJ 1 December 2016 case 395/15 (Daouidi) Temporary inability to work, disability and discrimination).
Mr. Daouidi was employed as of April 2014, as a part-time kitchen assistant, on the basis of an employment contract that, after extension, was set to be terminated in April 2015. In October 2014, he suffered an accident at work when he slipped on the kitchen floor and dislocated his elbow. Under Spanish law he was considered to be temporarily unable to work.
Two weeks later, his chef enquired as to his state of health. Mr. Daoudi replied that he could not return to work immediately. On 26 November 2014, while still temporarily unable to work, he was dismissed on grounds of not meeting the expectations of the undertaking and/or underperformance.
In December 2014 Mr. Daouidi challenged his dismissal before the Social Court of Barcelona, claiming it was null and void as it was discriminatory. Firstly, because it was based upon the fact that he was temporarily unable to work, which in his view fell within the scope of the notion of “a handicap”. Secondly, he argued that it infringed his fundamental right to physical integrity. Consequently, Mr. Daouidi asked that his former employer be ordered to reinstate him and to pay him arrears of wages, as well as damages to compensate him for both material and non-material losses.
The referring court held that the true reason for Mr. Daouidi’s dismissal, although seemingly based on disciplinary grounds, was his temporary inability to work for an indefinite period of time as a result of the accident he had suffered at work. However, under Spanish law, illness or temporary disability are not considered discriminatory factors. The referring court stayed the proceedings in order to obtain a preliminary ruling from the European Court of Justice on whether this dismissal was compliant with EU-law, and in particular several articles of the Charter of Fundamental Rights of the European Union as well as Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation.
The Court only answered the fifth question of the referring court, on whether Directive 2000/78 must be interpreted as meaning that the fact that a person finds himself or herself unable to work, as defined by national law, for an indeterminate period of time by reason of an accident at work implies, in itself, that the limitation of that person’s incapacity can be defined as ‘long-term’, within the meaning of ‘disability’ under that directive.
- The purpose of Directive 2000/78 is to lay down a framework for combating discrimination, as regards employment and occupation. Within the limits of the areas of competence conferred to the European Union, a dismissal of a person, both in the private and public sectors, on the grounds of his disability, would therefore be considered to be discriminatory.
- Following ratification by the European Union of the UN Convention, the concept of “disability” has been defined as referring to a limitation that 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.
- Since the origin of the disability is irrelevant, the fact that the disability is due to an accident that occurred at work or that it is caused by an illness does not preclude it from being a disability, provided it entails the long-term limitation as defined above.
- Disability is an objective concept, to be determined on the basis of scientific and medical evidence. In this respect, the advocate general emphasized that the employer’s subjective interpretation of what he deems to be a long-term absence, which makes it necessary for the employer to dispense of the worker’s services, is irrelevant.
- Council Directive 2000/78 must be interpreted as meaning that the fact that a person finds himself in a situation of temporary incapacity for work for an indefinite period of time, does not mean that the limitation of that person’s incapacity can be classified as being “long-term” within the meaning of the definition of disability.
- The fact that the limitation is long-term may be derived from the fact that, at the time of the allegedly discriminatory act, the incapacity of the person does not display a clearly defined prognosis as regards short-term progress or the fact that it is likely that the recovery time will be significantly prolonged.
- Whether such a limitation is “long-term” is a factual matter, to be established by the national courts on the basis of all evidence brought before them, in particular on the basis of documents and medical certificates assessing the likely duration of the disability in question.
Relevance for future case-law – the Belgian perspective
- Unlike Spanish law, the Belgian Law of 10 May 2007, explicitly prohibits discrimination on grounds of current or future state of health. Although an employer may decide to dismiss an employee on sick leave, by paying him compensation in lieu of notice for the notice period that is legally due, there is a risk that the employee will claim additional damages on grounds of discrimination. These damages amount to either a lump sum of six months’ wages or the actual moral and material damages suffered and proven by the worker.
- A worker who is officially on sick leave but wishes to return to work may ask to be given an adapted job or an alternative work scheme (e.g. part-time rather than full-time). Until recently, the employer was not obliged to grant this request. As of 1 December 2016, two Royal Decrees of 2016 have introduced a compulsory procedure to reintegrate workers on sick leave into the workforce. The proceedings can be initiated by the employee from day one of his sick leave or by the employer after four months of sick leave. The occupational health physician will conduct a medical assessment of the worker and examine whether it is possible for him to perform other or adapted duties. The employer will then have to draft a reintegration plan, unless it is technically or objectively impossible to reintegrate the worker or if the request is unreasonable.
- The parties may lay down the new alternative working conditions (wages, timetable, amount of work, …) in a separate contract. However, the worker’s initial contract is not suspended for the duration of his occupation in an alternative/adapted job. Hence, if the employer decides to terminate the contract of a worker who was previously occupied on a full-time basis, in the course of this worker’s part-time occupation, as a result of his incapacity, he will have to pay severance on the basis of the worker’s initial full-time employment contract. Finally, the law allows for the employer to terminate the contract of the worker on grounds of medical ‘force majeure’ without compensation, under certain conditions, after having gone through all the different stages of the reintegration proceedings, including possible appeals of the worker against the occupational health physician’s decision deeming him permanently disabled to perform his job.
- In view of the fact that a worker’s incapacity to work is deemed to be temporary “by definition”, one might argue that this disability could not be considered to be “long-term” in nature. However, this view, as also expressed by the French and Spanish governments in the case of Mr. Daoudi, is expressly rejected by the ECJ. If a temporarily unable worker can show that his condition entails a long-term limitation in the sense of a disability as defined by the ECJ, any measure whereby he would be treated less favorably on grounds of his incapacity could be deemed to be a prohibited discrimination on grounds of disability. As a disabled worker in the sense of the ECJ’s definition, he would then also be legally entitled to reasonable accommodations on behalf of his employer, since a refusal to provide for these is an unlawful act of discrimination per se.
In view of the new legal proceedings with regard to the reintegration of workers in the workplace, the ECJ’s decision of 1 December 2016 may encourage workers to apply for adaptations and even oblige their employers to grant these measures, lest they should have to face accusations of discrimination on grounds of disability and thus be held liable for payment of additional damages on this ground. Whether or not the worker’s incapacity to work actually amounts to a disability will ultimately be for the courts to decide, on the basis of medical and scientific evidence to be presented by the worker. As this is a factual matter, case law may vary widely in that respect. A prudent and well-informed employer would therefore be wise to think twice before proceeding to dismiss a worker who is temporarily unable to work.
Author Cecilia Lahaye is an attorney at Van Olmen & Wynant (Brussels, Belgium), specialized in employment law. She has also worked as legal counsel to attorneys appointed to the Belgian Supreme Court, specializing in labor and social security law.
 Articles 3, 15, 21 (1), 30, 31, 34 (1) and 35 of the Charter of Fundamental Rights of the European Union
 United Nations Convention of the Rights of Persons with Disabilities, approved by Council Decision 2010/48/EC of 26 November 2009.
 ECJ 18 December 2014, C-354/13 (Kaltoft); ECJ 11 April 2013 (Ring); ECJ 11 July 2006 (Chacon-Navas).
 Article 4, 4° and 14 of the Act of 10 May 2007 aimed at combating certain discriminations, Royal Gazette 30 May 2007.
 Article 18, § 1 and § 2, 2° Act of 10 May 2007.
 Royal Decree of 28 October 2016 and 8 November 2016, Royal Gazette 24 November 2016, effective 1 December 2016.
 This procedure does not apply in the event of illness or incapacity caused by an accident at work or by an occupational disease. These matters are regulated by specific social security laws.
 The employer can initiate these proceedings (a) as of 1 January 2017 for incapacity leave starting as of 1 January 2016 and (b) as of 1 January 2018 for incapacity leave that started prior to 1 January 2016. Workers may start these proceedings as of 1 January 2017, regardless of the start date of their incapacity leave.
 Article 31/1 of the Act of 4 July 1978 on Employment Contracts as inserted by the Act of 20 December 2016, Royal Gazette 30 December 2016, effective 9 January 2017.
 Article 34 of the Act of 4 July 1978 on Employment Contracts.
 In practice: for the period of time covered by his personal physician’s certificate.
 Article 14 of the Act of 10 May 2007.
 E.g. a shoulder injury that prevented a cleaner from performing tasks at shoulder level was considered not to be a disability by the Labour Court of Appeal of Antwerp (23 April 2010), whereas the elbow injuries of a carpenter that entailed a 12 % incapacity to work were labelled as such by the Labour Court of Brussels in a decision of 6 May 2015.