The worker’s dismissal due to an accumulation of justified absences may be contrary to European law when the absences are linked to illnesses derived from disability.

Judgment delivered by the Court of Justice of the European Union on 18 January 2018 [Case C-270/16: Ruiz Conejero]

The claim was filed because of the dismissal of a worker who provided his services as a cleaner in a hospital. The worker was hired in 1993 and worked without any incident in the current company and in those who had previously employed him in cleaning the hospital. In fact, he had not been sanctioned by the Company at any time.

During the employment relationship, the worker was recognized as 37% disabled, broken-down by 32% due to physical limitations derived from a disease of the endocrine-metabolic system –specifically obesity– and a functional limitation of the spine, and by 5% due to complementary social factors.

The Court of Justice of European Union (CJEU) dismisses the existence of direct discrimination because the article that regulates dismissal for absenteeism applies identically to persons with disabilities and persons without disabilities: the requirement is for them to have missed work. Once direct discrimination is discarded, the CJEU questions if there is a difference in indirect treatment. In this sense, the Court points out that including the days of sick leave linked to disability in the calculation of the days of sick leave is equivalent to assimilating a disease linked to a disability to the general concept of illness. However, for the CJEU it is necessary to exclude the pure and simple equation of the concepts of disability and illness.

Indeed, in comparison with a worker without disability, a disabled worker is exposed to the additional risk of being off work due to an illness related to his/her disability. In this way, there is a greater risk of accumulating days of sick leave and, therefore, of reaching the limits foreseen in the dismissal for absenteeism. Therefore, it seems that the rule established in this provision may disadvantage disabled workers and, in this way, imply a difference in indirect treatment based on disability.

However, indirect discrimination may be objectively justified by a legitimate purpose, provided that the means applied to achieve it are adequate and do not go beyond what is necessary to achieve the purpose foreseen by the Spanish legislator.

In this case, the CJEU does not solve the dispute. What the Court does is remember that the Member States have a wide margin of appreciation for a certain objective to prevail over another in matters of social policy and employment. That is why the CJEU refers to the referring court to check whether the means applied by the national legislation to achieve the purpose of increasing work and efficiency at work are adequate and do not go beyond what is necessary to achieve it.

In view of the foregoing, the CJEU understands that it “must be interpreted as precluding national legislation which provides that an employer may dismiss a worker on the grounds of intermittent absences from work, even if justified, even in a situation where those absences are the consequence of illnesses attributed to that worker’s disability”.

This means that the CJEU leaves the evaluation of the discriminatory purpose of the measure carried out by the Company up to the national courts.