An Advocate General has given an opinion that an employee, with 9 months service and off sick for seven weeks with a dislocated elbow with an indefinite return date, could be a disabled person. How does this fit with the Equality Act 2010?

In Daouidi v Boote Plus SL, an Advocate General in the Court of Justice of the European Union has recently delivered an opinion (in French only so far) about the meaning of disability in the EU’s Employment Equality Framework Directive. The Advocate General’s opinion is not binding on the Court so this is not a final decision. It is not a controversial opinion but the facts offer something novel.

The facts we know:

  • Employee starts as a temporary chef but is later offered and accepts a fixed term contract.
  • The chef has been employed for 9 months
  • The chef slips on the kitchen floor and falls, dislocating his elbow
  • The chef is off work on sick leave for 7 weeks with his arm in plaster
  • The chef expects to get better and be able to return to work but is not yet well enough to do so
  • The Employer decides that it cannot wait for the chef to get better and dismisses the employee summarily

The Advocate General's opinion was that a worker who finds himself temporarily unable to work for an indeterminate period because of a work accident is likely to be disabled for the purposes of the Directive. However, the Advocate General said it was up to the national courts to make that decision.

In the UK, Employment Tribunals turn to the Equality Act 2010. For us, the question is whether the physical or mental impairment is likely to have a substantial and long-term effect on day-to-day activities or is likely to recur. Under the 2010 Act, long-term effect means at least 12 months.

If, when the chef was dismissed, he could argue that it was likely that for another 10 months this dislocated elbow would have an adverse effect on his ability to carry out day to day activities, then he could be a disabled person under the Equality Act.

Conclusion

Many UK employers and HR professionals may not consider Equality Act obligations at all in this context – where an employee with 9 months service has been off for 7 weeks on sick leave. It may not cross their minds that an impairment of this type could be a disability. Although this case does not represent a change to EU or UK law, it is a useful reminder of how and when disabled person status can be conferred.

If you are considering dismissing an employee due to their sickness record, always consider whether the Equality Act will apply or not before making the decision to dismiss.