Unfavourable treatment of an employee with a disability in comparison to a non-disabled employee, might constitute discrimination, if this distinction cannot be justified. In a recent Polish case (C-16/19 Szpital Kliniczny) an employer treated certain employees with a disability, adversely, compared to other employees with a disability. The CJEU had to resolve the question of whether this can constitute discrimination, as understood by the Employment Equality Directive 2000/78.
Polish companies with at least 25 employees are required to have at least 6% of their workforce made up of disabled workers. If they do not, they will have to pay a penalty (in proportion to the difference with the targeted 6%). Employers can prove the employment of workers with disabilities by means of a certificate that the employees concerned must submit to their employer. In order to motivate employees with a disability to apply for this certificate and to submit it, a hospital introduced a premium of about EUR 60 per month from 2013 for its employees, who submitted their certificate from that moment on. Employees with disabilities who had already submitted their certificate did not receive this wage supplement.
An employee with a disability who had already submitted her certificate before 2013, filed a complaint because she felt discriminated against due to her disability. The Polish court submitted a question to the CJEU to ask whether this is possible. The CJEU confirmed that this is possible and pointed out that the wording of Article 2(1) and (2) of Directive 2000/78 – which refers to discrimination and to less favourable treatment, and which uses the terms ‘another’ and ‘other persons’ – does not mean that, as regards the protected ground (disability), the prohibition of discrimination is limited to differences of treatment between persons with and without disabilities.
However, it follows from the expression ‘on the basis of’ that for the purposes of this Directive, discrimination on the grounds of disability can be established only where the less favourable treatment or disadvantage concerned, is suffered on the grounds of disability. If the unfavourable treatment by the employer is based on the employee’s disability, inasmuch as it is based on a criterion which is inextricably linked to that disability, such treatment is contrary to the prohibition of direct discrimination set out in Article 2(2)(a) of Directive 2000/78. The referring national judge needs to determine whether the temporal condition imposed by the employer for receiving the premium (i.e. the submission of the disability certificate after a specific date) constitutes a criterion which is inextricably linked to the disability of the workers who were refused that allowance. The CJEU indicates that this is probably the case.
Source: CJEU 26 January 2021, Case C-16/19 (Szpital Kliniczny im. dra J. Babińskiego Samodzielny Publiczny Zakład Opieki Zdrowotnej w Krakowie)
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