In our Christmas greetings, we described the two cases and the statement of the Advocate-General. The European Court of Justice has - not surprisingly - chosen to follow the statement of the Advocate-General.
In the first case, the employee had been employed for five years, during which she had been absent due to sickness for several periods. The absence totalled more than 120 days. In the doctor's certificates presented in connection with the absence, reference was made primarily to chronic back pains due to osteoarthritis in the loin showing as constant loin pains. The doctors concluded that there were no further treatment options.
No measures had been taken which could perhaps ease the employee's pain when performing work, nor had she got an elevation table or been offered part-time work despite the fact that the employer did offer part-time positions.
Due to the accumulating absence, she was dismissed at a reduced notice under section 5 (2) of the Salaried Employees Act. Immediately after the dismissal, she started a new job as a receptionist with another company where she got an elevation table, her weekly working hours were fixed at 20, and the employment was subject to the scheme on jobs on flexible terms, including a wage subsidy of 50 %.
In the other case, the employee was involved in a traffic accident resulting in a whiplash injury, and she was absent due to sickness for three weeks, after which she resumed her full-time job. After approx. six months, it was clear that she still suffered from after-effects of the whiplash injury and, for a period, she was on part-time sick leave ending in full-time sick leave due to permanent pain. Finally, she was dismissed at one month's notice with reference to the 120-day rule under section 5 (2) of the Salaried Employees Act. Subsequently, she was granted early retirement pay based on an evaluation of her working capacity and that she would only be able to work for approx. eight hours a week at slow pace.
The European Court of Justice was requested to decide on (i) the disability concept, (ii) whether it is part of this concept to assess the compensation measures that the person in question needs, (iii) whether a reduction of the working hours may be part of the measures required by the Directive against discrimination, and (iv) whether it is contrary to the Anti-Discrimination Act to apply the 120-day rule of the Salaried Employees Act on reduced notice of termination when dismissing a person if sickness days due to a disability are included in the calculation of the number of sick days.
The European Court of Justice ruled as follows:
The disability concept
In order to assess whether a person is disabled, it is decisive that the person is subject to a functional impairment resulting in a limitation of the person's participation in a professional activity. The reason for this limitation is of no importance, including whether the limitation is due to an illness, is inborn or is caused by an injury. The Court states, however, that the decisive factor is whether the limitation is of long-term duration.
The employer claimed that the disability concept was to be construed in such a way that it was impossible to perform a professional activity. The European Court of Justice rejected this construction stating that a disability involves a hindrance to the exercise of a professional activity and that the health condition of a disabled person capable of working - although on reduced hours - may also belong under the concept.
The European Court of Justice stated in general: "The concept of ‘disability’ must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails 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, and the limitation is a long-term one."
Need for compensation
The European Court of Justice suggests that a long-term functional impairment, which does not require special aids, and which is only or solely reflected by the person not being able to work full-time, is to be considered a disability.
Further, the Court states that an assessment of the disability concept does not depend on the adaptation obligation, but that the assessment of the disability must be made in advance. The measures must take into consideration the needs of the disabled person and are therefore a consequence of and not a part of the disability concept.
The European Court of Justice therefore rejects that the compensation requirements should be part of the assessment of the concept disability. Consequently, the Court sets aside the practice of the Western High Court from 2007 when the court determined a connection between the disability concept and the fact that the adaptation obligation was (solely) a reduction of the employee's working hours. In the future, it must first be determined whether there is a disability, and then the need for compensation, if any, should be taken into account.
Reduction of working hours
The European Court of Justice determines that the listing of the measures to take in the Directive are not exhaustive, and that a measure is characterised by making it possible for the employee to continue performing work notwithstanding the disability. A reduction of the working hours may therefore be one of the measures that the employer is obligated to offer.
At the same time, the European Court of Justice specifies that the Directive does not require the recruitment, promotion or maintenance in employment of a person who is not competent, capable and available to perform the essential functions of the post concerned when the adaptation requirements have been met.
In the specific case, the European Court of Justice orders the national (Danish) court to decide whether such measures - reduction of the working hours - may result in a disproportionately heavy burden on the employer. The European Court of Justice does therefore not decide on the actual facts of the specific case.
Application of the 120-day rule
The European Court of Justice was asked whether absence due to sickness may be included in the calculation when the absence is a consequence of the employer having omitted taking appropriate measures in accordance with the obligation of the Directive.
The Court determines that it will be contrary to the Anti-Discrimination Act to apply the reduced notice under section 5 (2) of the Salaried Employees Act, if the sickness due to a disability is included in the calculation of the 120 days, when the absence is a consequence of the employer having omitted to take appropriate measures in accordance with the obligation of the Directive.
Further, the Court was asked whether an employer may dismiss an employee at a reduced notice if the absence is a consequence of the employee's disability.
The Court reaches the conclusion that this is not direct discrimination, but it may be indirect discrimination. The Court finds that an objective reason for the provision exists, and that it is therefore not unfair that Denmark assesses that a measure like the 120-day rules of section 5 (2) of the Salaried Employees Act may be appropriate in order to reach a fair balancing between the employer's and the employee's opposite interests as regards absence due to sickness.
The Court states that, in general, the provision is contrary to the Directive, unless this provision pursues a legitimate purpose and does not exceed what is necessary in order to reach this purpose. In the specific case, it is left for the Danish court to decide whether the provision pursues a legitimate purpose and does not exceed what is necessary in order to reach this purpose.
As regards a reduction of the working hours and the prohibition against the application of the 120-day rule when the absence is a due to the employer's omission to take appropriate measure, this is in line with the expected outcome. We are still awaiting the decisions of the Danish courts - and in particular the Supreme Court - as to whether the application of the 120-day rule is contrary to the prohibition against discrimination due to a disability.
The content of this Newsletter is not, and should not replace, legal advice.