The CJEU in Ring v Dansk was asked to clarify the meaning of disability, inter alia, in relation to the equal treatment directive 2000/78/EC pertaining to the sphere of employment. The framework directive does not define ‘disability’ and thus it is appreciable how the precise interpretation is a point of contention in the above case. It is argued here that the guidance of the CJEU offers a cogent clarification as to the meaning of disability but the concept of disability itself and how it is deployed as a definitional entryway to restrict the reach of substantive elements of anti-discrimination laws such as reasonable adjustments (accommodation) is particularly incoherent.
Ring v Dansk was pursued by a trade union for both applicants of this conjoined case concerning two employees who due to their respective illnesses were unable to work full-time. Ms Ring had developed constant lumbar pain for which there no remedial treatment was available and a prognosis as to when she could resume full-time work was not obtainable. The other applicant, Ms Werge had whiplash injuries sustained in a road traffic incident resulting in various absences and ultimately being on full-time sick leave. Both women were dismissed from their employment. Under Danish law employers are entitled to dismiss with a reduced period of notice in cases where there has been absences from work amounting to 120 days across a 12 month time period. It was the contention of the trade union that both dismissals were unlawful as the reduced statutory notice period was not applicable in cases where the absence is owing to a disability and moreover the absences were a reflection on the corresponding employers failing to make reasonable accommodations in the form of reduced working hours. The employers disputed the notion that the applicants were disabled and further contested the challenge that reasonable accommodation covered a switch to part-time working.
Decision of CJEU
The Danish court referred a number of matters to the CJEU. In particular the Danish court was seeking direction as to whether a reduced ability to carry out one’s duties at work amounted to impairment, for the purposes of Directive 2000/78-that established a general framework for equal treatment, including disability anti-discrimination provision, in the workplace. In turn guidance was sought on whether a reduction in working hours fell within the duty to make reasonable adjustments.
The CJEU held that a disability does not inevitably have to entail an inability to work whatsoever. A hindrance on a person’s ability to work to some extent is sufficient, therefore someone who can work perfectly well but is only able to do so on a part-time basis can still be said to be disabled. The court also confirmed that satisfying the test of disability is not contingent upon requiring certain aids or equipment to carry out work. Nevertheless, providing the employee in question is deemed to have a disability then the question of reasonable accommodation(s) comes into play.
On the preliminary question to address, namely whether the claimant is ‘disabled’, the CJEU elected to endorse a broad notion of disability, one which included curable and incurable illnesses of the kind that may not otherwise be deemed a disability. Paragraph 41 of the judgment stated that, ‘if a curable or incurable illness entails a limitation which results in particular from 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, and the limitation is a long-term one, such an illness can be covered by the concept of ‘disability’ within the meaning of Directive 2000/78.’ In arriving at this interpretation the CJEU stepped beyond the Directive 2000/78 for guidance and suggested the meaning of disability has to be determined in a manner consistent with international obligations under of UN Convention on the Rights of people with Disabilities (ratified by the EU in 2009). Article 1 of the Convention describes persons with disabilities as ‘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.’ The CJEU affirmed this view of disability, emphasising that a condition of a long-term nature is essential, but more importantly the CJEU rejected the idea that the origin of the disability bore any relevance, instead it held to construe disability in this way would ‘run counter to the very aim of the directive’. An illness, not of itself but involving a limitation of the kind envisaged under the Convention and Directive, where it was long-term would amount to a disability.
With the CJEU content that the claimants in question had cleared the first hurdle of satisfying the test of disability, the next material question was to consider whether and to what extent the employers should have made reasonable accommodation(s). Article 2 of the UN Convention indicates ‘reasonable accommodation’ is taken to mean taking necessary and appropriate steps, not incurring a disproportionate burden’ but to ensure persons with disabilities can enjoy or exercise fundamental freedoms and human rights on an equal basis with others. Specifically on what this necessitates in practise the CJEU noted reduced working hours was not specifically included in the Directive 2000/78, nonetheless reference was made in Recital 20 to ‘patterns of working time’. Ultimately the CJEU determined that a reduction in working hours entailing a shift from a full to part-time work, if it enables the employee in question to continue their employment can be considered a reasonable accommodation. That is providing the accommodation does not put a disproportionate burden on the employer, something which is a matter of fact for national courts to determine. With regards to the reduced notice period the CJEU identified that this could prima facie constitute indirect discrimination, as an employee with a disability may potentially clearly accrue more days of sickness absence, however it was left open as matter of fact for national courts to decide whether any differential treatment was justified by proportionate means to achieve a legitimate aim.
On both counts, defining disability and the scope of reasonable adjustments, the decision of the CJEU is sound and in tune with the zeitgeist. Ring v Dansk gives a strong endorsement to the social model of disability, which contends that disability has to be understood in the context of how ‘attitudinal and environmental barriers’ induce disadvantage. This is evidenced no more so than through the CJEU’s reference the UN Convention on the Rights of Persons with Disabilities wide conception of disability.
It is difficult to argue with Darren Newman’s verdict on this case that it is ‘inconceivable’ a UK court would have referred the matter to the CJEU (see Darren Newman, ‘Impairment that hinders “professional life” held to be disability’ Equal Opportunities Review 236 (2014)). That reducing a person’s hours of work can amount to a reasonable adjustment is in the UK a relatively straightforward notion. Domestically the Directive 2000/78 is given effect via the Equality Act 2010, s.6(1)(a)&(b) defines disability as where a ‘person has a has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.’ This aspect is potentially a little more problematic. Differential wording gives rise to a conceivable discrepancy as to the meaning of disability. For example, in Ring v Dansk the CJEU accepted the Chaćon Navas v Eurest Colectividades SA, C-13/05, IRLR 706 ruling that ‘the concept of ‘disability’ must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life.’ The material parts which may cause tension are the reference to ‘day-to-day’ activities in the Equality Act 2010 and ‘professional life’ under Chaćon Navas. An employee may have difficulty in carrying out parts of their duties, such as heavy lifting or working at heights, but this may not otherwise disrupt their ‘day-to-day’ activities. Vice versa, a troublesome part of home life, for instance mobility issues, may not be as pronounced at work. It is unclear to what extent tribunals in the UK may regard the two approaches as materially different. One would suspect ‘day-to-day’ activities could be interpreted widely to cover ‘professional life’, after all for many going to work is indeed a ‘day-to-day’ activity! (Just to note a reason why this has emerged is because the Directive 2000/78 pertains exclusively to the employment sphere, whereas the Equality Act 2010 applies more broadly across society).
With regards to reasonable accommodations/adjustments, it seems that, in the workplace setting at least, these provisions are the gemstone of the anti-discrimination framework. Reasonable adjustments get to the heart of substantive issues and are much more than a punitive device; they are a means to bring the respective parties together in order to find a workable solution when a person’s disability, broadly defined, causes problems or limitations in carrying out their occupational responsibilities. Yet, using disability as a way to access these provisions appears to be a practical obstacle and a time-consuming task that distracts from the core issue. Furthermore, it provokes outcomes as in Ring v Dansk where the employers sought to defend the claims on the grounds that the employees in question were not in fact disabled for the purposes of Directive 2000/78. A clear signal that the ‘hearts and minds’ element of anti-discrimination laws still has a long way to go even if this was albeit a legitimate defence tactic. It is not as if reasonable adjustments imposes an automatic or overly onerous encumbrance on employers – as the CJEU made explicitly clear in this case it is necessary to ensure any modifications are proportionate and do not place an undue burden on the employer. Consequently, for the best part of this case it would seem that the deliberations regarding disability are obligatory as the law stands but nonetheless it is a process that results in the parties failing to see the wood for the trees and get to grips with the substantive issue in contemplating whether to make reasonable adjustments and if so what steps practically are required to discharge this duty.
PhD Candidate, Durham Law School