In a recent case (XXXX vs HR Rail SA (Third Chamber) (C-485/20), the CJEU was requested to clarify whether the reassignment of an employee to another post due to an inability to perform the essential functions of his post because of disability qualifies as “reasonable accommodation” for persons with disability.
The facts of the case revolve around the applicant who was fitted with a pacemaker in view of a heart condition during the term of his employment. Prior to undergoing this procedure, he was recruited as a trainee specialist maintenance technician for the railway tracks with the HR Rail Company and was undergoing training when the condition was diagnosed. Due to this, he could no longer work by the railway tracks since repeated exposure to electromagnetic fields would damage the pacemaker. As a result, the company’s medical centre stated that he could no longer hold his original posting, but that he could be given another post which required moderate activity with no exposure to magnetic fields, altitude, or vibrations. Therefore, the applicant was reassigned to a warehouse position within the same company.
The issue arose when the Managing Director of HR Rail informed the employee that his traineeship was terminated due to total/permanent incapacity to perform his duty for which he was recruited and removed the offer of ‘personalised support’.
The local court thus requested the CJEU to clarify whether providing different employment within the same company is an obligation under EU law.
The court initially examined whether the fact that the applicant was a trainee falls within the remit of the Equality Framework Directive 2000/78/EC. This was confirmed by the Court since the Directive is not limited to members of staff recruited on a permanent basis but also includes traineeships. It also examined the definition of disability, stating that there is no doubt that being fitted with a pacemaker does constitute a disability.
When dealing with the main question of the case, the court examined Article 5 of the Directive which states that employers must take all appropriate, effective, and practical measures to enable a person with a disability to have access to, participate in or advance employment and undergo training, unless it poses a disproportionate burden on the employer.
The court referred to the Advocate General’s opinion where he stated that reassignment to another position may constitute an appropriate measure of reasonable accommodation within Article 5. The AG considered this to be consistent with the concept of removing barriers which hinder full and effective participation from people with disabilities in the professional sphere. However, consideration must be taken on not creating a disproportionate burden on the employer. Hence, the possibility of reassigning the disabled person is only possible if there is at least one vacancy in a position the worker is capable of holding and an employer cannot be expected to create a position from nothing.
In conclusion, the court held that the concept of ‘reasonable accommodation’ for disabled persons requires that a worker (including one in traineeship) who, owing to a disability, has been declared incapable of resuming the essential functions of the post, be assigned to another position which he has the competence and capability of performing unless it poses a disproportionate burden on the employer.
