5.4. Disability – Handbook on European non-discrimination law

Handbook on European non-discrimination lawContents

Neither the ECHR nor the Employment Equality Directive provide a definition of disability. Because of the nature of the CJEU’s role, national courts frequently determine what constitutes a disability and present it as part of the factual background to disputes they refer to the CJEU.

In Chacón Navas,500 the CJEU interpreted the concept of disability under Directive 2000/78/EC in a way close to a medical model of disability. However, as discussed in Chapter 1, the EU became party to the CRPD,501 which is now a reference point for interpreting EU law relating to discrimination on the grounds of disability.502 The CJEU stated that “Directive 2000/78 must, as far as possible, be interpreted in a manner consistent with that Convention.”503 Consequently, the CJEU refers to the definition of disability as provided in the CRPD, which reflects the social model of disability. According to Article 1 of the CRPD:

“Persons with disabilities include those who have long-term physical, men- tal, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”

According to Article 2 (3) of the CRPD, discrimination on the grounds of disability means any distinction, exclusion or restriction on the basis of disability, which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

Article 2 (4) of the CRPD specifies that:

“‘Reasonable accommodation’ means necessary and appropriate modifi- cation and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.”

Furthermore, Article 2 (3) explicitly acknowledges that denial of reasonable accommodation is covered by the definition of ‘discrimination’. An example of denial of reasonable accommodation can be found in a case concerning refusal of the application for permission to build a hydrotherapy pool that would meet rehabilitation needs of a person with disability. 504 The Committee on the Rights of Persons with Disabilities stressed that a law which is applied in a neutral manner may have a discriminatory effect when the particular circumstances of the individuals to whom it is applied are not taken into consideration. It found that a departure from the development plan could accommodate the individual needs of persons with disabilities and ensure them the enjoyment or exercise of all human rights on an equal basis with others and without discrimination.

As the authorities did not address the specific circumstances of applicant’s case and her particular disability-related needs, the Committee found a violation of several provisions of the CRPD.

Under both EU and CoE law, it is also recognised that states have obligations to ensure reasonable accommodation to allow persons with disabilities the opportunity to fully realise their rights. Therefore, failure to do so amounts to discrimination.505

Example: In HK Danmark,506 two employees were dismissed from their jobs with a shortened notice period because of workplace absences resulting from their health problems. The employers disputed that the claimants’ state of health was covered by the notion of ‘disability’. They argued that the only incapacity was that the claimants were not able to work full-time. The CJEU stated that “Directive 2000/78 must, as far as possible, be interpreted in a manner consistent with that convention.” As a consequence, the CJEU held that “the concept of ‘disability’ must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments 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.” This means that disability does not necessarily imply complete exclusion from work or professional life.

Furthermore, the CJEU interpreted Article 5 of the Employment Equality Directive as meaning that employers were required to take appropriate measures, in particular to enable a person with a disability to have access to, participate in, or advance in employment. The CJEU referred to the broad definition of reasonable accommodation as set out in Article 2 of the CRPD. The CJEU noted that pursuant to recital 20 in the preamble to the Employment Equality Directive and the second paragraph of Article 2 on reasonable accommodation, measures are not limited to those that are material, but can also include organisational measures. Consequently, it held that a reduction in working hours may be regarded as a reasonable accommodation measure in a case in which the reduction makes it possible for a worker to continue their employment. The CJEU left the matter for the national court to assess whether a reduction in working hours represented in this particular case a disproportionate burden on the employer.

Under EU law, the concept of disability within the meaning of Directive 2000/78 does not cover every medical condition (even a severe one) but only one that prevents the person “from having access to, participating in or advancing in employment”.507

Example: In C. D.508 and Z.,509 the claimant was unable to become pregnant. She used a surrogate mother to have a child. She applied for leave equivalent to maternity or adoption leave. However, her request was refused on the ground that she had neither been pregnant nor adopted a baby. The CJEU noted that her inability to have a child by conventional means did not prevent her from having access to, participating in, or advancing in employment. Consequently, it held that her condition did not constitute a disability within the meaning of the Directive. Thus, EU law does not require that a mother should be granted maternity leave or its equivalent in such a situation.

To establish whether the health problems of a person concerned are included in the scope of the notion of disability, the effects of the medical condition should be taken into consideration. Specifically, it is vital to examine whether or not this particular state of health may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers.

Example: In FOA v. Kommunernes Landsforening, 510 the CJEU had to determine whether or not disability applied to an obese worker who had been dismissed. The CJEU held that obesity as such is not a disability within the meaning of Directive 2000/78, but in some cases, it can amount to a disability. The CJEU found that obesity can be considered as a disability, irrespective of its medical classification,511 when, for example, it results in reduced mobility or medical conditions preventing the person concerned from carrying out work or causing discomfort when carrying out a professional activity.

In Mohamed Daouidi,512 the CJEU considered whether the dismissal of a worker due to temporary incapacity (but of unknown duration) could constitute direct disability discrimination. The Court ruled that the dismissal could, in principle, be considered directly discriminatory on the grounds of disability, provided the incapacity was ‘long-term’.513 Whether it is ‘long-term’, is a question of fact for national courts to decide based on all available objective evidence. Such evidence may include medical and scientific data, and knowledge relating to that person’s condition. It may also include the fact that, at the time of the discriminatory act, the person’s prognosis regarding short-term progress is uncertain, or the fact that the person’s incapacity is likely to last a significant amount of time before they recover.

Under the ECHR, although not expressly featuring in the list of protected grounds, disability has been included by the ECtHR in its interpretation of ‘other’ grounds under Article 14.

Example: In Glor v. Switzerland,514 the ECtHR found that the applicant, who was a diabetic, could be considered as a person with a disability, irrespective of the fact that national law classified this as a ‘minor’ disability. The applicant was obliged to pay a tax to compensate for failing to complete his military service, which was payable by all those who were eligible for military service. To be exempted from this tax one either had to have a disability reaching a level of ‘40 %’ (considered equivalent to the loss of use of one limb), or be a conscientious objector. Conscientious objectors were obliged to perform a ‘civil service’. The applicant’s disability was such that he was found unfit to serve in the army, but the disability did not reach the severity threshold required in national law to exempt him from the tax. He had offered to perform the ‘civil service’ but this was refused. The ECtHR found that the state had treated the applicant comparably with those who had failed to complete their military service without valid justification. This constituted discriminatory treatment since the applicant found himself in a different position (as being rejected for military service but willing and able to perform civil service), and as such the state should have created an exception to the current rules.

Example: In Guberina v. Croatia, 515 the applicant requested tax exemption on the purchase of a new property adapted to the needs of his severely disabled child. The authorities did not take into consideration his son’s particular needs and found that he did not satisfy the conditions for tax exemption on account of already being in possession of a suitable place to live. The ECtHR stressed that, by ratifying the CPRD, Croatia was obliged to respect such principles as reasonable accommodation, accessibility and non-discrimination against persons with disabilities and that, by ignoring the specific needs of the applicant’s family related to his child’s disability there had been a violation of Article 1 of Protocol 1 in conjunction with Article 14 of the Convention. In this case, for the first time, the ECtHR recognised that discriminatory treatment of the applicant on account of the disability of his child was “disability-based discrimination covered by Article 14”.516

As with other protected grounds under the ECHR, it is not uncommon for cases to be dealt with under other substantive rights, rather than under Article 14.

Example: In Price v. the United Kingdom,517 the applicant was sentenced to prison for a period of seven days. She suffered from physical disabilities due to ingestion of thalidomide by her mother during pregnancy, with the result that she had absent or significantly shortened limbs as well as malfunctioning kidneys. Consequently she relied on a wheelchair for mobility, required assistance to go to the toilet and with cleaning, and needed special sleeping arrangements. During her first night in detention she was placed in a cell that was not adapted for persons with physical disabilities and consequently was unable to sleep adequately, experienced substantial pain and suffered hypothermia. On transferral to prison she was placed in the hospital wing where some adaptation could be made, but she still experienced similar problems. She was also not permitted to charge her electric wheel chair, which lost power. The ECtHR found that the applicant had been subject to degrading treatment, in violation of Article 3. Discrimination based on one of the substantive rights of the ECHR under Article 14 was not raised in this case.

Example: In Pretty v. the United Kingdom, 518 the applicant, who suffered from a degenerative disease, wished to obtain an assurance from the government that her husband would not be prosecuted for assisting her to die where her condition had progressed such that she was unable to carry out the act herself. Under national law, assisting with the commission of a suicide constituted a criminal offence of itself, as well as amounting to murder or manslaughter. Among other things, the applicant argued that her right to make decisions about her own body protected in the context of the right to private life (under Article 8) had been violated in a discriminatory manner, since the state had applied a uniform prohibition on assisted suicide, which had a disproportionately negative effect on those who have become incapacitated and are therefore unable to end their lives themselves. The ECtHR found that the refusal to distinguish between those “who are and those who are not physically capable of committing suicide” was justified because introducing exceptions to the law would in practice allow for abuse and undermine the protection of the right to life.

Under the ESC, the wording of Article E of the Revised Social Charter is very similar to that of Article 14 of the ECHR. Similarly, although disability is not explicitly listed as a prohibited ground of discrimination under Article E, it is covered by the reference to ‘other status’.519 Another provision referring to rights for people with disabilities is Article 15 of the ESC (revised), providing, among others, for the right to education.

Example: In European Action of the Disabled (AEH) v. France,520 the claimant organisation complained that, with regard to education, there was discrimination in the case of children with autism. It submitted that, owing to insufficient places and facilities in France, children were obliged to attend specialised facilities in Belgium. The ECSR acknowledged the importance of education as a condition of “independence, social integration and participation in the life of the community”.521 The ECSR held that the French authorities failed to take into account the specific learning needs of children with autism at schools within its own territory. As a result, families who wanted to educate their children with autism in a specialised school had to go abroad. The ECSR found that this constituted direct discrimination against them. Furthermore, the ECSR considered that the limited funds in the state’s social budget for the education of children and adolescents with autism indirectly disadvantages these persons with disabilities. This constituted indirect discrimination.

The following example from national jurisdiction illustrates the link between the refusal of certain services and the obligation of the providers toward persons with disabilities.

Example: In a case before the French courts,522 three unaccompanied applicants with disabilities filed a penal complaint against easyJet because the airline had refused them boarding a plane at a Paris airport. EasyJet explained that they had adopted such a policy towards disabled unaccompanied travellers since their flight personnel were not trained to “manage and assist disabled persons”. The Court of Cassation confirmed that easyJet’s transportation policy did not allow disabled persons to board a plane without verifying their individual capacity to travel. The Court further stated that Article 4 of the Regulation (EC) No. 1107/2006523 allows airlines to refuse a person with disabilities to board a plane only in case of safety requirements that are established by national or international law, or a competent authority. However, easyJet did not prove the existence of such a safety requirement. The Court of Cassation pointed out that easyJet had an obligation to train its personnel in line with the EU regulation and French national law. In its ruling, the lower court sanctioned easyJet with an administrative fine for its discriminatory policy against persons with disabilities and the Cassation Court dismissed the company’s appeal.

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500. CJEU, C-13/05, Sonia Chacón Navas v. Eurest Colectividades SA [GC], 11 July 2006.

501. For the EU the CRPD entered into force on 22 January 2011.

502. CJEU, C-312/11, European Commission v. Italian Republic, 4 July 2013; CJEU, C-363/12, Z. v. A Government department and The Board of Management of a Community School [GC], 18 March 2014; CJEU, C-356/12, Wolfgang Glatzel v. Freistaat Bayern, 22 May 2014; CJEU, C‑395/15, Mohamed Daouidi v. Bootes Plus SL and Others, 1 December 2016; CJEU, C-406/15,
Petya Milkova v. Izpalnitelen direktor na Agentsiata za privatizatsia i sledprivatizatsionen kontrol, 9 March 2017.

503. CJEU, Joined cases C-335/11 and C-33711, HK Danmark, acting on behalf of Jette Ring v. Dansk almennyttigt Boligselskab and HK Danmark, acting on behalf of Lone Skouboe Werge v. Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S, 11 April 2013.

504. UN, Committee on the Rights of Persons with Disabilities, Communication No. 3/2011, CRPD/C/7/D/3/2011, 21 May 2012.

505. ECtHR, Çam v. Turkey, No. 51500/08, 23 February 2016; ECtHR, Horváth and Kiss v. Hungary, 11146/11, 29 January 2013.

506 CJEU, C-335/11 and C-337/11, HK Danmark, acting on behalf of Jette Ring v. Dansk almennyttigt Boligselskab and HK Danmark, acting on behalf of Lone Skouboe Werge v. Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S, 11 April 2013.

507. CJEU, C-363/12, Z. v. A Government department and The Board of Management of a Community School [GC], 18 March 2014, para. 81 (emphasis added).

508. CJEU, C-167/12, C. D. v. S. T. [GC], 18 March 2014.

509. CJEU, C-363/12, Z. v. A Government department and The Board of Management of a Community School [GC], 18 March 2014.

510. CJEU, C-354/13, Fag og Arbejde (FOA) v. Kommunernes Landsforening (KL), 18 December 2014, see in particular paras. 53-64.

511. The CJEU did not follow the approach advanced by the Advocate General who referred to WHO classification of obesity and stated that only Obese Class III can amount to a disability.

512. CJEU, C‑395/15, Mohamed Daouidi v. Bootes Plus SL and Others, 1 December 2016.

513. Neither the CRPD nor Directive 2000/78 define ‘long-term’ as regards a physical, mental, intellectual or sensory impairment.

514. ECtHR, Glor v. Switzerland, No. 13444/04, 30 April 2009.

515. ECtHR, Guberina v. Croatia, No. 23682/13, 22 March 2016.

516. Ibid., para. 79. It is an example of so called discrimination by association. See Section 2.1.4.

517. ECtHR, Price v. the United Kingdom, No. 33394/96, 10 July 2001.

518. ECtHR, Pretty v. the United Kingdom, No. 2346/02, 29 April 2002.

519. See for example ECSR, European Action of the Disabled (AEH) v. France, Complaint No. 81/2012, 11 September 2013, para. 132; ECSR, International Association Autism-Europe v. France, Complaint No. 13/2002, 4 November 2003, para. 51.

520. ECSR, European Action of the Disabled (AEH) v. France, Complaint No. 81/2012, 11 September 2013.

521. Ibid., para. 75.

522. France, Court of Cassation, Criminal Chamber, Easyjet v. Gianmartini and Others, No. 13-81586, 15 December 2015.

523. Regulation (EC) No. 1107/2006 of the European Parliament and of the Council of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air.

Contents

5. Protected grounds

5.1. Sex

5.2. Gender identity

5.3. Sexual orientation

5.4. Disability

5.5. Age

5.6. Race, ethnicity, colour and membership of a national minority

5.7. Nationality or national origin

5.8. Religion or belief

5.9. Social origin, birth and property

5.10. Language

5.11. Political or other opinion

5.12. ‘Other status’

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