It is a number of years since the interpretation of “disability” under European law was last scrutinised closely, the issue having been reasonably well settled since 2006 when the European Court clarified that “sickness” is not “disability” for the purposes of the applicable Directive. However, a Danish case due to be heard by the Court today seems set to challenge many fundamental and long-held perceptions as to the meaning of disability, not to mention established case law. Audrey Williams, partner at Global Law Firm, Eversheds comments:
“The European Equal Treatment Directive of 2000 set the foundations of discrimination law and provided a framework on which UK law has been based ever since. The overriding principle is one of equal treatment but, whilst the Directive includes those with a disability amongst its equality provisions, it does not define the meaning of “disability”. A body of case law has grown up in the intervening years, clarifying that question and, for us in UK, contributing to our legislation and statutory guidance explaining key interpretational issues. Accordingly, we understand the various criteria for establishing disability with some confidence. However, a case due before the European Court this week, brought by Ms Jette Ring, raises a number of specific and probing questions, the responses to which could re-define disability discrimination law as we know it.
“The case in point concerns a Danish lady who has a slipped disc and consequential back problems. She asked to work part-time but this was not accommodated by her employer and her employment was eventually terminated on grounds of poor attendance and performance in accordance with Danish law. The employee has claimed disability discrimination but is she “disabled”? Specific questions have been posed to the Court in terms of the meaning and extent of the Directive in this regard. For example, can a condition caused by a medically diagnosed incurable illness be a “disability” or, what if the illness is temporary only? Most significantly of all, can an inability to work full-time, based on mental or physical grounds be indicative of disability?
“A decision by the Court is likely to be some months off yet but the answers it provides to these important issues will prove significant and could change considerably our understanding of disability discrimination law. UK law currently identifies a number of key indicators of disability, such as the duration of any incapacity which, in most cases, must extend beyond a year. “Temporary illness” is not generally covered so any contrary view by the Court could place our current legislation into doubt. Similarly, whether an individual is capable of full-time work is not, of itself, an indicator of disability, merely a factor in the wider context of the impact of the impairment.
“UK law already obliges employers to make reasonable adjustments to counter disadvantage to those with mental or physical impairments. This may well include consideration of part-time working but as a potential solution, not a factor determinative of disability. It would also be a more subjective criterion. The course the European Court takes in a few months time, therefore, could potentially broaden the scope of disability discrimination protection but also make it easier to establish disability.”