Employers Beware: Temporary Incapacity may Constitute a Disability Where it is Sufficiently Long-Term
The European Court of Justice (ECJ) has held that there was no reason why the dismissal of a temporarily incapacitated worker, with an uncertain prognosis
The European Court of Justice (ECJ) has held that there was no reason why the dismissal of a temporarily incapacitated worker, with an uncertain prognosis, could not constitute direct discrimination on grounds of disability under the EU Equal Treatment Framework Directive (the Directive).
The Facts
Mr Daouidi worked as a kitchen assistant at Bootes Plus SL hotel restaurant in Barcelona from April 2014. In October 2014, he slipped on the kitchen floor whilst at work and dislocated his elbow. When he was contacted by the kitchen's chef two weeks later, Mr Daouidi advised that he would not be able to return to work immediately.
In late November 2014, Mr Daouidi was dismissed on grounds of poor performance. He brought claims for unfair dismissal and disability discrimination.
Under Spanish law (which incorporates the Directive) 'disability' is defined as "the situation of persons with long-term impairments which, in interaction with various barriers, may hinder their full and effective participation in society on an equal basis with others."
When Mr Daouidi's claim was heard six months later, his arm was still in plaster and his prognosis uncertain. The Spanish social court referred this case to the ECJ for a preliminary ruling as to whether the uncertain duration of Mr Daouidi's incapacity meant it could be considered 'long-term' within the meaning of 'disability' for the purposes of the Directive.
The ECJ's Finding
The ECJ held that just because a person is temporarily unable to work as a result of an accident at work, for an indeterminate amount of time, does not mean that by itself that their incapacity can be classed as 'long-term' for the purposes of the Directive. However, the fact that at the time of the allegedly discriminatory act, the prognosis of the worker as to their short-term progress is unclear, or that their incapacity is likely to be significantly prolonged before the worker has recovered, may be evidence making it possible to find that such a limitation is 'long-term' in nature.
The ECJ declined to make a factual finding in this case and instead held that the question of whether a disability is 'long-term' is for the national court to determine taking account of all objective evidence and in particular, documents and certificates relating to that person's condition.
Best Practice
In UK law, under the Equality Act 2010, a person has a disability if they have a physical or mental impairment, which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Para 2(1) of Schedule 1 to the Equality Act 2010 provides helpful guidance in determining whether an impairment is 'long-term', stating that the effect of an impairment is long-term if it has lasted or is likely to last for at least 12 months.
When faced with a case on these facts, it would be a difficult task for a tribunal to assess whether such an impairment would meet this criteria, and any decision would need to involve an objective assessment of all the medical evidence relating to the impairment.
Notably in this case, Mr Daouidi's arm was still in plaster when his case was heard six months after his dismissal. However, as the Court of Appeal confirmed in the 2008 case of McDougall v Richmond Adult Community College, the likelihood of an impairment lasting for 12 months should be assessed at the date of the alleged act of discrimination. Therefore, if an employee would normally be expected to recover from a particular impairment within 12 months, then the fact that they are still incapacitated at the time of the hearing should not form the basis of any finding on this point.