- 23 Feb 2021
- Eloïse Hullar
In a judgement issued on 26 January 2021 (C-16/19), the Court of Justice of the European Union (CJEU) made some significant clarifications about direct and indirect discrimination based on disability.
In this case, a Polish employee started working for her employer in 2011 and quickly submitted a disability certificate. During a staff meeting in 2013, the employer decided to pay an allowance to the employees who would hand in a disability certificate after this meeting. The employer’s goal was to reduce its contribution to the State Fund for the rehabilitation of persons with disabilities, and so save money.
The allowance was therefore paid to 13 employees who had submitted their disability certificate after the date chosen by the employer, while the employee hired in 2011, as well as 15 other employees, were refused the allowance, solely because they had submitted their disability certificate before that date.
The case was therefore referred to the CJEU to find out whether the situation could constitute discrimination based on disability, which is prohibited by Directive 2000/78 of 27 November 2000 (hereinafter referred to as the “Directive”).
First of all, the Court specified that difference in treatment within a group of workers with disabilities may be covered by the concept of discrimination referred to in Article 2 of the Directive. The Court feels that the principle of equal treatment is designed to protect a disabled worker against any discrimination based on that disability, not only in relation to workers who do not have disabilities, but also in relation to other disabled workers.
As a result, the CJEU judged that in this case, the practice adopted by an employer of only paying an allowance to disabled workers who submitted a disability certificate after a date chosen by that employer , may constitute direct or indirect discrimination based on disability.
More specifically, according to the Court:
- such a practice may constitute direct discrimination when it consists in treating somebody less favourably than other people in a comparable situation, on the basis of a criterion inextricably linked to disability. In particular, the Court points out that in this case, the disabled workers had already started working for the employer when the latter decided to award the allowance, and had thus all contributed to the saving sought by that employer, which put them in a comparable situation. However, only those who had not yet submitted their certificate before the date chosen by the employer were able to benefit from the allowance. Those who had already submitted their certificate before that date were therefore treated less favourably, because, in particular, the employer had not allowed them to present their disability certificate, or to present a new one, in order to benefit from the allowance.
- such a practice may constitute indirect discrimination when, whilst appearing neutral, it would put disabled workers at a particular disadvantage depending on the nature of their disability, without this practice being justified by a legitimate aim and without the means of achieving that aim being appropriate and necessary. In this case, the Court concludes that the disputed practice may have the effect of putting people with a visible disability, or one that requires reasonable adjustments to working conditions, at a disadvantage, because these employees found themselves obliged to submit their disability certificate to their employer, before the date chosen by the latter, while employees with a different kind of disability, including in particular a less serious one, still had a choice as to whether or not to take that step. Such a practice, according to the Court, does not seem justified given the aim pursued by the employer in this case, in other words that of saving money.
 Council directive 2000/78/EC of 27 November 2000 creating a general framework for equal treatment in employment and occupation.