The Court of Justice of the European Union ruled on Tuesday, 26 January, that an employer’s practice of paying an allowance only to workers with disabilities who have submitted a disability certificate after a date set by the employer may constitute direct or indirect discrimination on the grounds of disability (Case C-16/19).
VL was employed by a hospital in Krakow from October 2011 to September 2016. In December 2011, she obtained a disability certificate, which she immediately forwarded to her employer. In order to reduce the amount of the hospital’s contributions to the Polish State Fund for the Rehabilitation of Persons with Disabilities, the director of that establishment decided—following a meeting with the staff, which took place in 2013—to grant a monthly allowance to employees who, following that meeting, submitted certificates attesting to their disabilities. On this basis, the allowance was granted to 13 workers, whereas 16 other workers who had previously submitted their certificates did not receive it.
Having heard an appeal brought by VL, the Krakow Regional Court asked the Court of Justice whether the hospital’s disputed practice constitutes direct or indirect discrimination on the grounds of disability as prohibited by the directive on equal treatment in employment and occupation (2000/78).
The Court of Justice first examines whether a difference in treatment occurring within a group of persons with disabilities falls within the ‘concept of discrimination’ within the meaning of the directive. According to the court, the principle of equal treatment enshrined in EU law is designed to protect a worker who has a disability against any discrimination on the basis of that disability—not only as compared with workers who do not have disabilities but also as compared with other workers who have disabilities.
The Court of Justice then assesses whether the disputed practice may constitute prohibited discrimination on the grounds of disability. According to the court, since the disputed practice is the cause of a difference in treatment between two categories of workers with disabilities who are in a comparable situation, it is thus for the referring court to determine whether the temporal condition imposed by the employer to receive the allowance constitutes a criterion that is inextricably linked to the disability of the workers who were refused the allowance.
In this case, the employer does not appear to have permitted workers with disabilities who had already submitted their certificates before the set date to resubmit them or to submit new ones in such a way that that practice could have prevented an identified group of workers whose disability status was known to the employer when that practice was introduced from fulfilling that temporal condition. Therefore, such a practice may constitute direct discrimination within the meaning of the directive.
If the referring court finds, on the contrary, that the difference in treatment in question is the result of an apparently neutral practice, it will fall to that court to ascertain—so as to determine whether that practice constitutes indirect discrimination—whether it has placed certain workers with disabilities at a disadvantage due to the particular nature of their disabilities. In fact, according to the Court of Justice, it could be held that it was mainly workers with specific disabilities who found themselves obliged, before the date set by the hospital, to formalise their state of health by submitting a disability certificate, whereas other workers with disabilities of a different nature (for example, a less serious disability or one that did not require specific adjustments) had a choice as to whether or not to take such a step.
Unjustified by a legitimate aim, such a practice could then constitute discrimination indirectly based on disability.
See the judgment: https://bit.ly/3qQD6vO (Original version in French by Mathieu Bion)