European Court of Justice (ECJ) advocate general Eleanor Sharpston says in conclusions dated Thursday 19 October in case C-270/16 that an employer may dismiss a disabled worker if his repeated absences due to his disability cause serious damage.
A Spanish citizen whose disability was recognised by the health authorities in 2014 worked as a surface technician in a hospital from 1993 to 2015. From 2014 to 2015, he was absent for several weeks due to his disability without informing his employer of his health problems. In 2015, the hospital dismissed him on the grounds that his absences, while justifiable, had exceeded the maximum time laid down in Spanish legislation on workers’ rights.
The Spaniard challenged the dismissal and a Spanish court asked the European Court of Justice for a preliminary ruling about whether EU Directive 2000/78/EC on equal treatment at work was compatible with dismissal due to repeated absence due to a disability.
The advocate general first pointed out that an employer may be held responsible for indirect discrimination if he fails to take reasonable measures to remove the disadvantages caused by disability. In connection with Directive 2000/78/EC, Sharpston said that if the employer is aware or should reasonably be aware of an employee’s disability, he must make reasonable arrangements unless they would be disproportionately burdensome to him.
The advocate general feels that legislation like that in force in Spain creates indirect discrimination if it is not objectively justified and if resources for achieving the objective (in this case, limiting absenteeism) are not appropriate and necessary. Sharpston says that tackling absenteeism is a legitimate objective if it causes serious damage at national or company level.
The advocate general says the Spanish court is responsible for deciding whether the Spanish rules are proportionate in terms of whether they cover periods of absence that are solely occasional and sporadic. She adds that the proportionality of the measure should also be assessed in terms of the sickness benefits paid by the employer. (Original version in French by Lucas Tripoteau)