1. ECJ Rulings with Regard to Discrimination on the Grounds of Disability – Case C-13/05 Chacón Navas Prof. Lisa Waddington, European Disability Forum Chair in European Disability Law, Maastricht University

2. Faculty of Law 1. Introduction The Directive prohibits discrimination on the grounds of disability and provides for reasonable accommodations for persons with disabilities. First preliminary references concerning disability focused on the question of who is protected from discrimination? Coleman – discrimination by association on the grounds of disability Chacón Navas – who is to be regarded as a person with a disability for the purposes of the Directive?

3. Faculty of Law 2. The Chacón Navas Judgment – Introduction (1) Ms. Chacón Navas was dismissed after a prolonged period of absence due to illness. Did this amount to discrimination prohibited by the Directive? Preliminary reference asked: –Whether the provision of the Directive which prohibits disability discrimination, also protected a worker who had been dismissed solely because she was sick? –Alternatively, could sickness be added to the list of protected grounds covered by the Directive?

4. Faculty of Law 2. The Chacón Navas Judgment - Introduction (2) The ECJ addressed three issues in its judgment: -Elaboration of a definition of disability for the purposes of the Directive -Whether sickness could be added to the list of protected grounds -The obligation to make a reasonable accommodation for a worker with a disability

5. Faculty of Law 3. A Definition of Disability (1) Elaboration of a definition of disability for the purposes of the Directive The Court defined disability for the purposes of the Directive as: “a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life”

6. Faculty of Law 3. A Definition of Disability (2) ECJ’s definition has been criticised for being based on the medical model of disability. Disability is defined as a limitation resulting from an impairment. Judgment does not refer to or recognise the social model of disability.

7. Faculty of Law 3. A Definition of Disability (3) For any limitation to be regarded as a “disability”, “it must be probable that it will last for a long time” “Disability” is different from “sickness”, and there is nothing in the Directive “to suggest that workers are protected by the prohibition of discrimination on grounds of disability as soon as they develop any type of sickness”. Court’s definition of disability is “autonomous and uniform”.

8. Faculty of Law 3. A Definition of Disability (4) The Chacón Navas Definition of Disability and National Law i. No definition of disability in non-discrimination law – courts should follow Chacón Navas definition. ii. Definition of disability in non-discrimination law which is similar to that found in Chacón Navas. iii. Definition of disability for non-discrimination law which is taken from national law which provides for disability social security benefits. iv.Two definitions of disability in two non-discrimination laws. Definition used with regard to reasonable accommodation is same as definition used in the context of social security.

9. Faculty of Law 3. A Definition of Disability These last two approaches seem to breach the Directive and are not compatible with the judgment in Chacón Navas.

10. Faculty of Law 4. Whether sickness could be added to the list of protected grounds (1) Sickness could not be added to the list of grounds covered by the Directive. But the judgment may leave the way open for people who have a long term illness which does cause the required degree of limitation to be regarded as disabled for the purposes of the directive.

11. Faculty of Law 5. The Obligation to Make a Reasonable Accommodation (1) ECJ recalled that Article 5 of the Directive requires employers to make reasonable accommodations for people with disabilities: “That provision states that this means that employers are to take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, unless such measures would impose a disproportionate burden.”

12. Faculty of Law 5. The Obligation to Make a Reasonable Accommodation (2) The ECJ stated: The Directive prohibits dismissals on the ground of disability. Under the Directive, an employer cannot dismiss an employee where the employee would be able to do the job if a reasonable accommodation were made. An employee is able to do the job if s/he is “competent, capable and available to perform the essential functions of the post concerned” if a reasonable accommodation were made. (Recital 17)

13. Faculty of Law 5. The Obligation to Make a Reasonable Accommodation (3) Person is to be judged on the basis of what they can do after a reasonable accommodation has been made. Distinction has to be made between the “essential functions” – which an individual must be able to perform after the accommodation has been made – and “non-essential functions”.

14. Faculty of Law 5. The Obligation to Make a Reasonable Accommodation (4) Employer is not allowed to consider the cost of making the accommodation when comparing candidates, i.e. fact that one candidate needs an accommodation is irrelevant. Person who cannot carry out the “essential functions”, even after an accommodation has been made, is not qualified.