Disabled employees should have been offered part-time working

Disabled employees should have been offered part-time working

Published:

Author: Kevin McCavish

The European Court of Justice (ECJ) recently clarified the scope of "disability" and "reasonable accommodation" in the European, Equality Framework Directive (the Directive).

The law

Article 5 of the Directive requires employers to make "reasonable accommodation" for disabled people to enable them to have access to, and participate in, employment - as long as this does not impose a "disproportionate burden" on the employer.

This is relevant to UK law as Courts and tribunals here must interpret domestic legislation, as far as possible, in line with European case law.

The Equality Act 2010 contains a similar obligation to make "reasonable adjustments" for disabled employees and job applicants and also protects against direct and indirect disability discrimination.

The facts

In Ring v Dansk Almennyttigt Boligselskab and another case (C-335/11 and C-337/11), the ECJ considered the case of two employees who were dismissed on reduced notice for long-term sickness related absence: a Danish law allowed employers to reduce the minimum notice period from three months to one month where the employee has been on sick leave for 120 days in the last year.

Supported by their trade union, the employees bought claims for disability discrimination arguing that their employer should have offered them reduced working hours instead of dismissing them. In addition, they argued that the reduced notice period under Danish law should not apply where the absence was because of a disability. The employer argued that they were not "disabled" since the only incapacity that affected them is that they were not able to work full-time.

ECJ decision

The ECJ held:

  • "Disability" includes curable and incurable conditions which result in physical, mental or psychological impairments that may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers. Such limitation must be long-term one.
  • A person who can work to a limited extent, or who is fit for work albeit only part-time, can still be disabled.
  • A reduction in working hours may constitute an accommodation as required by Article 5 of the Directive.
  • It is for the national court to assess whether, in the circumstances, a reduction in working hours, represents a disproportionate burden on the employer.
  • The Directive does not allow an employer to terminate employment on reduced notice where the employee's absence is the consequence of the employer failing to make a reasonable accommodation, as required by the Directive.
  • The Directive does not allow an employer to terminate employment on reduced notice where absences are because of a disability, unless, in the opinion of the national court this is a proportionate means of achieving a legitimate aim.

Comment

This decision confirms that an employer needs to consider whether it can offer a disabled employee reduced working hours as a reasonable adjustment before dismissing them. It may be that there are good business reasons why this is not possible, but employers need to ensure they have looked at all the possibilities before dismissal. An employee who brings a successful claim for failure to make reasonable adjustments is likely to be awarded compensation and there is no limit on the amount of compensation which an employment tribunal can award in such cases.