In the joined cases of Ring and Skouboe Werge the European Court of Justice has answered questions on disability discrimination referred by a Danish court, concluding that the inability to work full time because of health can, by itself, indicate that an individual has a disability for the purposes of discrimination legislation.
Danish law allows an employer to terminate an employment contract with a reduced one month notice period if the employee has been on paid sick leave for 120 days during the previous 12 months. A Danish trade union brought actions on behalf of Ms Ring and Ms Skouboe Werge, who were dismissed under this provision, claiming that because they were suffering from a disability (Ms Ring had whiplash and Ms Skouboe a back disorder and osteoarthritis), the short notice period could not apply to them; and, in addition, their employers were required to offer them a reduction in working hours.
As well as deciding that the use of the shortened notice provision in the particular circumstances was unlawful, the ECJ also held that:
- Disability is not defined in the European Directive, but the ECJ in Chacón Navas held that the concept is distinct from illness and refers to "a long-term limitation which results in particular from physical, mental or psychological impairments and hinders the participation of the person concerned in professional life." Contrary to the arguments of the employers, the concept does not necessarily imply complete exclusion from work.
- The Directive also requires employers to take appropriate and reasonable measures to help employees with disabilities. (Under UK law, this is the duty to make reasonable adjustments.) A reduction in working hours is clearly an appropriate measure where it makes it possible for a worker to continue in employment. As is usual in ECJ cases, the Court did not decide whether on these particular facts a reduction in working hours would be a disproportionate burden on the employers – this will be an issue for the national court.
What is the significance of this case for the UK? Our statutory definition of disability looks at four questions:
- Is there a physical or mental impairment?
- Does it have an adverse effect on the ability to carry out normal day-to-day activities?
- Is that effect substantial – defined as more than minor or trivial?
- Is it long term – lasting, or likely to last, for at least 12 months?
Tribunals have traditionally given a broad interpretation to all these elements of the definition and as a result the test is not a particularly onerous one for a claimant to satisfy. However, the importance the ECJ attached to the question of whether the employee is disabled "from work" is significant. Our test is based on "normal day-to-day activities" and while tribunals do take into account the effect on an employee of circumstances which only arise at work, jobs of a specialist nature have not been regarded as a "normal" activity. The official guidance on the disability definition also confirms this approach in its examples. Following this case, it may be safer to concentrate more on the effect of the disability on the employee's ability to work and anything that prevents an employee from working (full-time) should be treated as coming within the disability definition.