Dicing with disability – the European Court is asked to rule on what “disability” meansAdd To My Clippings Alt Text

By Anna Sella

Does the Court of Justice of the European Union (CJEU) propose to change our understanding of disability discrimination? That is now a possibility, following a Danish court’s referral to the CJEU of two related disability discrimination cases.  

In the course of considering these claims, the Danish court has asked the CJEU to make preliminary rulings on the following:

  • whether a condition which is caused by a medically diagnosed temporary illness can be a disability, and
  • whether an inability to work full-time, due to a physical or mental impairment but which does not entail a need for special aids, can be regarded as a disability

The CJEU will be considering these questions under the European Equal Treatment Directive, which came into force in 2000 and covers disability discrimination. The Directive is the source of much of the UK’s anti-discrimination legislation. However, it does not actually define what is meant by “disability”, and the Danish court’s questions essentially ask for clarification about fundamental aspects of this concept.

 Meanwhile, in the UK, we are fairly comfortably settled in our understanding of the definition of disability under the Equality Act 2010: a person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on the individual’s ability to carry out normal day-to-day activities. In particular, we are familiar with the idea that “long-term” means lasting for, or likely to last for, at least 12 months.

If the CJEU decides that a condition caused by a temporary illness amounts to a disability, we may need to respond by changing our understanding – and potentially our legislation – surrounding disability discrimination in employment. If there is no requirement that a disability needs to be “long term”, are we to look at all impairments which have a significant adverse impact on day to day activities? And irrespective of how long they are likely to last? This may make sense from a purely conceptual point of view, as the 12 current month rule might be regarded as a bit of a random time limit. However, it will mean that disability discrimination claims are potentially open to a much larger section of the working population. Given that employers are under a duty to make reasonable adjustments, this is likely to expand the numbers of workers in relation to whom employers owe these duties. Best practice already requires reasonable adjustments to be considered wherever appropriate, but any change to the definition of disability may still have a significant impact. 

The question of whether a worker who is unable, as a result of a medical condition, to work full-time, is potentially more complex. Currently in the UK, this is a factor to be considered in determining whether a worker has a disability, but it is not determinative. Depending on the CJEU’s decision, this may become a key question in future. If so, how many workers who are currently classed as having a disability can say that their condition means they cannot work full-time? And will allowing part-time working become the expected reasonable adjustment in all but exceptional cases? It may be that prevention of discrimination against part-time workers becomes much more prominent, as workers who feel unable to work full-time obtain medical advice to confirm this and rely on disability discrimination law to protect their position.

Of course, the CJEU may look to how various member states have legislated around disability discrimination and make a decision which allows the UK understanding of disability to continue undisturbed. We await the CJEU’s decision with interest...

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October 2016