Unequal Treatment


An article by Michał Tomczak in the Rzeczpospolita daily (Kadry i Płace).

Disability is one of the prohibited discriminatory criteria, pursuant to Directive 2007/78. The directive prohibits discrimination on the basis of disability but does not define the concept of disability. This situation obviously creates an area of discontinuity which is normally covered by detailed and very detailed national rules. However, there is also no such reference directly to national provisions for definition purposes in the directive. This means that in the context of the concept of disability, there must be controversial issues, and thus – preliminary questions from national courts addressed to the Court of Justice of the European Union. We can speak of a specific legal loophole in European regulations, which is necessarily filled by jurisprudence.

As far as possible

A disabled person cannot be entrusted to a gully able- bodied person. It is this “equal treatment” of a disabled person what would constitute discrimination. So when we talk about non-discriminatory treatment of a disabled person, it is rather about entrusting him with such work that suit his/her abilities. Such a person must not be treated worse, because he is disabled. The starting point for this logical puzzle, however, is to determine what position is appropriate to the level of disability. Only after such determination can one speak of the risk of discrimination or the lack of it.

Directive 2000/78 contains an express provision here, Art. 5, which makes such a sense of equal opportunities. It obliges the employer to enable the disabled person to access work, work and professional development or education. These measures may not impose a disproportionately high burden on the employer, but these burdens are not considered disproportionate when they are sufficiently compensated by the Member State.

This is precisely the meaning of case C-397/18, derived from a preliminary question from the Court in Barcelona (Juzgado de lo Social n˚ 3 de Barcelona), in which the CJEU issued a judgment on September 11, 2019. It is an attempt to redefine the concept of disability, to enable its widespread use in the Union.

Occupational disease

The actual state of affairs can be reduced to several events. A worker from a plant producing plastic pipes (Nobel Plastiques Ibérica) has been classified as a worker particularly vulnerable to work-related risks since 2011, which was associated with an occupational disease related to lateral epicondylitis (a disease typical of tennis players, resulting from belching). balls with the backhand with the bent elbow). The company took this condition into account by referring the employee to positions where the work was less hazardous.

In 2016, Nobel Plastiques Ibérica adopted the following four criteria in order to carry out redundancies in the company for objective reasons:

  • work in a position related to the process of assembly and forming of plastic pipes,
  • efficiency below 95%,
  • less versatility in workplaces in the company, and
  • high absenteeism rate

On March 22, 2017, the employees were served with a letter about the termination of the employment contract for objective reasons.

Question to the Court

The referring court asked four questions. The most important was the first one, which enabled the task of the next three, differing only in a specific quantifier.

The first question was whether, for the purposes of applying Directive 2000/78 – as interpreted in the Court’s case-law – disabled workers should be considered as employees classified as particularly vulnerable to certain types of risk, if due to their personal characteristics or known physical condition are they particularly vulnerable to work-related risks and therefore cannot occupy certain jobs as this may pose a health risk to themselves or others?

The remaining three questions concerned the issue of this key issue: whether in this case – despite meeting the objective criteria of dismissal by the employer – termination of the employment contract constitutes an act of direct discrimination (due to 1) lower level of productivity, 2) limitation of versatility at all positions, and 3) due to long periods of absence from work)?

Although the CJEU judgments generally take into account the employee’s perspective, let’s try to look at the situation from the employer’s perspective – which, as you might guess, will not help him anyway. The employer has to dismiss for objective reasons; the language of our law – for reasons not related to the employee. In order to do this not only legally, but also decently, it sets objective criteria, which, of course, are primarily of performance and usefulness. How else would he do it?

Help, or convention

The Court of Justice of the EU, aware of the fact that Directive 2000/78 does not define disability, not wanting to rely entirely on national legislation, concluded that since the EU, by decision 2010/48, approved the UN Convention adopted in New York on December 13, 2006 on the rights of persons with disabilities it will be appropriate to refer to that Convention for the purposes of interpreting the Directive. The Court has already taken such steps in the past, for example in cases C-335/11 and C-337/11.

Pursuant to Art. 1 sentence 2 of the Convention: Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairment, which may, in interaction with various barriers, hinder their full and effective participation in society on the basis of equality. with other people.

As a precautionary measure, the Court concludes that it does not appear that Directive 2000/78 is intended to cover only congenital or accidental disabilities, excluding disability caused by disease. In addition, disability refers to an impediment to work, not an inability to do that work. Considering a worker as particularly vulnerable to work-related risks within the meaning of domestic law cannot, of itself, mean that that person is affected by a disability within the meaning of the directive, which the Court draws from the New York Convention.

New York premises

And hence the Court’s prudential conclusion, which states that the interpretation of Directive 2000/78 should be made in such a way that the condition described in relation to the Spanish employee (as being particularly vulnerable to work-related risks) falls within the scope of the concept of disability, when this condition meets definition premises derived from the New York Convention. That is – when this condition causes a limitation of abilities resulting, in particular, from a long-term impairment of physical, mental or mental functions, which, in interaction with various barriers, may hinder a given person from full and effective participation in professional life on an equal basis with other employees. It is for the national court to determine whether those conditions are satisfied in the case in the main proceedings.

Objective reasons

With regard to the remaining three questions, the Court assumed that the termination of an employment contract with a disabled employee for “objective reasons” because he / she meets the criteria that the employer takes into account to determine the persons with whom it intends to terminate the employment contract (such as such as productivity below a certain rate, lower versatility at work positions in the enterprise, as well as a high rate of absenteeism), constitutes indirect discrimination on the grounds of disability, unless the employer has previously introduced reasonable accommodation to the employee within the meaning of Art. 5 of that directive in order to ensure that the principle of equal treatment for disabled persons is respected.

The connection between the two theses of the judgment is interesting (and admittedly, not entirely logical) because, in the first thesis, the CJEU refrained from accepting that the case is a disability, ordering that this issue be examined on the basis of the criteria of the New York Convention. On the other hand, in the second thesis, he found that the disability took place, since it refers to its effects. So the second thesis should be read with the proviso – if there is a disability.

The court interprets here such that the objective criteria of dismissal for a disabled employee related to his insufficient performance and absenteeism may be applied if the employee was previously provided with assistance based on the above-mentioned Art. 5 of Directive 2000/78.

The scale of subjective assessments possible in relation to the application of this provision is huge. It is for the national court to make the relevant findings, as is always the case with the preliminary questions.


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I am a lawyer with thirty years of experience, in my first professional life I was a journalist. But in my every life I am most attracted to curiosity, discovering new lands, and secondly - convincing people to do what is wise, good or beautiful. I will also let myself be convinced of these three things.

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