Can sickness be protected as a disability under anti-discrimination law? A Spanish case opens the debate.

Authors
Guillermo Puig Carrasco
Partner at Sagardoy Abogados
gpc@sagardoy.com

This article sets out the debate that has ensued since a Spanish Labour Court submitted a question to the ECJ about whether an illness could be treated as a disability for the purposes of a discrimination claim against dismissal.

Firm:               Sagardoy Abogados

Mr. Daouidi was employed by Bootes Plus as a kitchen assistant in a hotel in Barcelona. On 3 October 2014, he slipped on the kitchen floor of the restaurant and dislocated his elbow. On 26 November 2014, while he was still temporarily unable to work, he received notice of dismissal. He made a claim in court, arguing that the dismissal was discriminatory because he was covered by the concept of ‘disability’ under Directive 2000/78. This directive provides the basis for anti-discrimination law in employment across the EU.

The legal position before this case

Under Spanish domestic Law to date, the dismissal of a sick employee has not been considered discriminatory, either under the Constitution or other law. This is because there is a distinction between being sick and being disabled. Sickness is about temporary changes to health, with foreseeable recovery in the short term, whereas disability means a health condition involving particular needs to do with work and social integration, but which is stable over time.

Until now, the two concepts have largely been kept apart - and being ill, unlike being disabled, was not included in the general framework established by Directive 2000/78. Therefore someone who was dismissed because of an illness was not protected by law.

In terms of EU law, the ECJ has handed down a series of judgments based on the following definition of disability: ‘a limitation, derived in particular from physical or mental or psychological impairments that, by interacting with various barriers, may impede the full and effective participation of the person concerned in professional life on equal terms with other workers’. But this meant that there was a possibility that if an illness caused a limitation over a long period, it could be regarded as a ‘disability’ in the sense of Directive 2000/78 and would therefore protected by anti-discrimination law.

Thus, it seems the key is to establish whether an illness is lasting or temporary.

The ECJ came to the view in the case of Mr. Daouidi that in certain situations, illness and disability were in fact interchangeable. In other words, that both illness and disability could both be treated by the courts as unlawful discrimination.

So, when exactly does an illness become ‘long term’?

The Court ruled that the fact that someone is off work for an indeterminate amount of time as a result of a work accident does not automatically mean his or her incapacity should be regarded as ‘long-term’ within the meaning of the definition of ‘disability’ in the Directive.  In addition, there are no definitive criteria for determining the point at which an illness becomes a permanent one. However, among the factors to consider is whether on the date an (allegedly) discriminatory act takes place, it was clear that the illness was unlikely to be short term and the person was likely to be away from work for a long time. To determine that, the courts must consider all the evidence available to them, including documents relating to the person’s condition and current medical and scientific knowledge.

The national courts

Once the ECJ had given its view, Labour Court nº 33 of Barcelona found Mr. Daouidi’s dismissal void on the basis that he had a permanent health condition. However, this decision was later quashed by the Court of Appeal of Catalonia (Tribunal Superior de Justicia de Cataluña) in a judgment of 12 June 2017, on the basis that permanent disability had not been proved.

Conclusion

The ECJ’s ruling has provoked quite a debate in Spain, as employers try to adjust to the fact that there may be many more cases of discrimination based on illnesses being treated as disabilities in the future. And we imagine this will be of interest in other countries too, given that it may have a far reaching effect on businesses and may impact some issues we all hold dear - employment, health and justice. 

Sagardoy Abogados

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