In the case of Daouidi v Bootes Plus SL and ors, the ECJ provided guidance on what constitutes a disability for the purposes of EU law in the context of an employee with temporary incapacity.

Mr Daouidi had been employed to work in a restaurant. After slipping on the kitchen floor whilst at work, he dislocated his elbow and was temporarily unavailable for work due to the injury. Around seven weeks after the accident the employee was still off work due to the incapacity and his employer decided to terminate his employment. The letter of termination stated that the basis of his termination was that he ‘did not meet the expectations of the undertaking or perform at the level the undertaking considers appropriate’. Mr Daouidi alleged that the reason for his dismissal was, in reality, his temporary incapacity as a result of the accident. In order to decide whether Mr Daouidi had any valid disability discrimination claims, the Spanish court requested guidance from the ECJ as to whether such temporary incapacity of uncertain duration could constitute a disability within the meaning of the EU Equal Treatment Framework Directive (No.2000/78) (the Directive).

The Court noted that it was clear from a reading of the UN Convention together with the Directive that incapacity must be long-term in order for it to amount to a disability. However, there was little clear guidance to assist with the assessment of what constitutes ‘long-term’. The Court considered that it was important for the meaning of long-term incapacity to ‘be given an autonomous and uniform interpretation throughout the European Union’. The Court held that the question was first and foremost a factual one. It found that it may be possible for temporary incapacity to be considered long term if, at the time of the allegedly discriminatory act, there was no clearly defined prognosis as regards short-term progress, or if incapacity was likely to be significantly prolonged before that person recovered. It held that a national court would need to make its decision as to whether incapacity was long-term on the basis of all objective evidence before it.

This decision does little to clarify exactly when incapacity should be considered long-term for the purpose of EU law, leaving the issue to be determined by national courts on the particular facts of each case. UK legislation provides that a disability is considered long-term if it has lasted or is likely to last for twelve months. Employers should maintain an open dialogue with employees who are off sick so that they are able to assess the nature of the employee’s incapacity, the prognosis and whether disability discrimination protection applies. If it does, consideration should be given to whether any reasonable adjustments can be made to accommodate the employee returning to work to limit the risk of discrimination claims.