On Thursday, 15 July, the Court of Justice of the EU (CJEU) ruled that Regulation Number 12 of the Government of Estonia on health requirements and medical checks for prison officers is contrary to EU law.
This regulation imposes an absolute bar on continuing to employ an officer whose hearing acuity does not meet minimum standards of sound perception without allowing it to be ascertained whether that officer is capable of performing their duties after the adoption of reasonable accommodation measures, where applicable.
According to the court, this regulation establishes discrimination directly based on disability.
A prison officer in Tartu Prison was dismissed after a medical certificate stating his hearing acuity did not meet the minimum standards of sound perception set by the regulation was issued. The text provides that impaired hearing below certain standards constitutes an impediment, and it does not authorise the use of hearing aids.
The prison officer brought an appeal before the Tartu Court of Appeal, which decided to ask the Court of Justice whether the provisions of Directive 2000/78 on equal treatment in employment and occupation preclude such national regulations (case C-795/19).
Based on this directive, the Court of Justice recalls that a difference in treatment does not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and that the requirement is proportionate.
In this case, the requirement to be able to hear properly and to have to meet a minimum standard of sound perception may be regarded as a genuine and determining occupational requirement. Since the regulation aims to preserve the safety of persons and public order, the court finds that it pursues legitimate objectives.
However, according to the court, the regulation does not permit an individual assessment of the officer’s capacity to fulfil the essential duties of a prison officer notwithstanding the hearing impairment with which they present.
In fact, the regulation did not allow the officer’s employer to conduct checks, prior to his dismissal, in order to consider measures such as use of a hearing aid, his exemption from the obligation to perform tasks requiring that the prescribed minimum standards of sound perception be met, or even assignment to a post that does not require that those standards be met, and no indication is provided as to the possible disproportionate nature of the resulting burden.
According to the court, this regulation thus appears to have imposed a requirement that goes beyond what is necessary to attain the objectives pursued.
See the judgment (in French): https://bit.ly/2U9qVjb (Original version in French by Camille-Cerise Gessant)