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CJEU clarifies the concept of disability

April 18th 2013

The Court of Justice of the EU explains the concept of disability and decides that a reduction in working hours may be regarded as a reasonable accommodation measure

On 11th of April 2013, the CJEU delivered a judgment in a case referred by the HK Danmark, a Danish trade union for a preliminary ruling. The case concerned two actions for compensation on behalf of Ms Ring and Ms Skouboe Werge, because of their dismissal with a shortened notice period. The HK Danmark claimed that those two employees were entitled to a reduction in working hours since their absences were caused by their disability. The Sø- og Handelsret (Maritime and Commercial Court, Denmark) asked the Court of Justice to clarify the concept of disability, define whether a reduction in working hours may be regarded as a reasonable accommodation measure and whether the Danish legislation on the shortened notice period for dismissal is contrary to EU law since their absences were caused by their disability.

The Court of Justice further developed its interpretation given in the Chacón Navas case (C-13/05) and held that the concept of ‘disability’ must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments (that could include a condition caused by an illness medically diagnosed as curable or incurable) 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. In addition, the physical, mental or psychological impairments must be ‘long-term’. The Court also observed that the directive requires the employer to take appropriate and reasonable accommodation measures in particular to enable a person with a disability to have access to, participate in, or advance in employment and a reduction in working hours may be regarded as an appropriate accommodation measure in a case in which the reduction makes it possible for the worker to continue in his employment. However the national court is responsible to assess whether a reduction in working hours, as an accommodation measure, represents a disproportionate burden on the employers and to assess also if, in the present cases, the workers were persons with a disability

Furthermore, the Court noted that since national legislation applies in the same way to disabled and non-disabled persons, a worker with a disability is more exposed to the risk of application of the shortened notice period than a worker without a disability because he has the additional risk of contracting an illness connected with his disability. In this respect the legislation may place disabled workers at a disadvantage. Taking into consideration the discretion enjoyed by the Member States in social and employment policy, the national court is in place to examine whether the Danish legislature is pursuing a legitimate aim and does not go beyond what is necessary to achieve that aim.

You can read the full text of the judjment here