Labour & European Law Review Weekly Issue 503 18 January 2017
To come within the definition of disability under EU law, the physical or mental impairment has to be “long’term”. In Daouidi v Bootes Plus SL, the Court of Justice of the European Union (CJEU) held that a worker’s temporary incapacity of uncertain duration can come within the definition of disability provided it is long term (a question of fact for the national court to decide).
Mr Daouidi started working for Bootes Plus as a part-time kitchen assistant in April 2014 on a three-month basis. In July his contract was increased to full time and extended by nine months following a favourable report from the kitchen chef.
In October Mr Daouidi slipped on the kitchen floor and dislocated his shoulder which had to be put in plaster. When the chef got in touch with him two weeks later to ask when he might be able to return to work, Mr Daouidi said he was still incapacitated. On 26 November 2014, when he was still temporarily unable to work, Mr Daouidi was dismissed ostensibly because of poor performance.
Decision of the lower court
The court agreed that the real reason for the dismissal was his temporary inability to work for an uncertain amount of time as a result of the accident that he had suffered at work.
According to Spanish law, however, dismissal on grounds of illness or of temporary disability resulting from an accident at work is not considered to be discriminatory as it is not “long term”. However, six months after the accident Mr Daouidi’s elbow was still in plaster and it was clear from his employer’s actions that they thought his incapacity had gone on too long.
The court therefore asked the CJEU to decide if the requirement under the European Directive on Equal Treatment in Employment and Occupation for the incapacity to be “long-term” could be satisfied if a worker was unable to work for an indefinite period of time, following an accident at work.
The CJEU said that for Mr Daouidi to come within the scope of the directive, he had to prove that he had a long-term physical or mental impairment which meant that he could not participate in professional life on an equal basis with other workers.
The fact that his incapacity was temporary did not mean that it could not be classified as “long term” within the meaning in the directive. However, he had to provide evidence that the incapacity was long term. Such evidence may include the fact that, at the time of the alleged discriminatory act, the worker’s short term prognosis remained uncertain or that his incapacity was likely to be significantly prolonged before he recovered.
When trying to decide whether it is long-term or not, the referring court must base its decision on all of the objective evidence in its possession, in particular on documents and certificates relating to the person’s condition, established on the basis of current medical and scientific knowledge and data.
While the CJEU held that a person who is temporarily incapacitated may fall within the definition of disability it did not clarify what is meant by “long term” and left it to the national courts to determine. In the UK, Schedule 1 Part 1 of the Equality Act 2010 provides that an impairment is long term if it has lasted or is likely to last for at least 12 months.