- 06 Apr 2018
- Dorothée David
Bill creating the new occupation of supporting inclusion in employment for workers with a disability or in outplacement
Bill no. 7269, submitted to the Chamber of Deputies on 23 March 2018, is designed to facilitate professional inclusion for anybody classified as disabled or in outplacement and, more importantly, keeping them in employment, by creating an occupation called “assistance à l’inclusion dans l’emploi” (supporting inclusion in employment). The Bill is only aimed at employees classified as disabled or in outplacement employed by an employer in the private sector, and those receiving help from the ADEM with an employer in the private sector.
This new form of support for inclusion in employment for employees with a disability or in outplacement is designed to teach their colleagues about the specific nature of their disability or their reduced ability to work. It is also designed to give businesses the opportunity to call upon the services of an accredited external expert to help with the process of integrating an employee with a disability or in outplacement within the company.
Within this context, the Bill allows for the possibility of this support being covered by the Fonds pour l’Emploi (Labour Fund). In practical terms, support would be requested jointly by the employer and the employee with a disability or in outplacement, and granted in accordance with a two-stage procedure for a maximum period of two years for an open-ended contract, and a maximum equivalent to the duration of a fixed-term contract or the ADEM support provided to encourage employment. The money provided by the Fonds pour l’Emploi would be granted on presentation of documents supporting the application, and the funds would be paid directly to the person or department providing the support.
The CJEU admits that dismissing an employee with a disability may, in certain circumstances, fulfil the legitimate goal of combating absenteeism
The CJEU recently had to rule on the dismissal of an employee with a disability due to his absenteeism. The facts of the case were as follows:
A Spanish worker, employed for 22 years as a cleaning agent in a hospital, was dismissed in July 2015, one year after being recognised as having a disability, with the degree of his incapacity being set at 37%, 32% of which related to physical disability, characterised by a disease of the endocrine-metabolic system (obesity). In fact, between 2014 and 2015, he was unable to work on several occasions, due to issues (back problems, dizziness and nausea) connected to the disease that had caused his disability. According to the Workers’ Statute applicable in this case, an employee can be dismissed for intermittent absences from work, even if they are justified, representing 20% of the working days over the course of 2 consecutive months, if the total absences during the previous 12 months made up 5% of working days (or 25% during 4 non-consecutive months over a 12-month period). As the employee’s absenteeism had reached these thresholds, the employer dismissed him on this basis.
The employee felt that he had been the victim of discrimination based on disability, so he referred the case to the Spanish courts. As far as the latter were concerned, the rule found in the Workers’ Statute constitutes indirect discrimination based on disability, and is not justified by any legitimate aim to integrate employees with disabilities. They therefore referred the following question for a preliminary ruling from the CJEU: does Directive 2000/78/EC on equal treatment preclude national legislation under which an employer may dismiss a worker on the grounds of his intermittent absences, even if justified, including when these absences are the result of sickness attributable to a disability suffered by that worker?
There were three parts to the CJEU’s response: first of all, it recognises that the national regulation in question could result in a difference in treatment indirectly based on disability between workers without and with a disability, with the latter being exposed to a greater risk of cumulating days of absence and being dismissed in accordance with the national regulation authorising dismissal. Nevertheless, the CJEU recognises that combating absenteeism may be regarded as a legitimate aim, justifying different treatment, as it concerns a measure of employment policy. Lastly, it specifies that, in order to comply with the Directive, while pursuing this legitimate goal of combating absenteeism, national legislation must provide appropriate measures that do not go beyond what is necessary to achieve this goal, which is the responsibility of the national courts to determine. In practical terms, before ruling on the validity of the dismissal in question, the Spanish judges will have to, among other things:
- make sure that the thresholds stipulated by national legislation are designed to respond to the fight against absenteeism, without covering purely occasional or sporadic absences,
- take into account the direct and indirect costs to be borne by the companies due to the absenteeism,
- make sure that the requirements stipulated by the Workers’ Statute applicable in the case in question encourage employers to recruit and maintain people in employment,
- not overlook the risks run by individuals with a disability, who encounter more difficulties and have specific needs in terms of employment.