A recent decision in the European Court of Justice (ECJ) has considered whether strictly applying sickness absence triggers to disabled employees amounts to indirect disability discrimination. Indirect disability discrimination is prohibited under the Equal Treatment Framework Directive, and arises when a seemingly neutral provision, criterion or practice (PCP) puts disabled individuals at a particular disadvantage. However, the PCP can be objectively justified if it has a legitimate aim and the means of achieving that aim are appropriate and necessary.
Turning to the case in hand, Mr Ruiz Conejero became disabled during his employment with Ferroser Servicios Auxiliares SA. Under Spain’s ‘Workers’ Statute’, intermittent sickness absences over certain thresholds permit employers to dismiss employees – and so Ferroser dismissed Mr Conejero. The dismissal was challenged by Mr Conejero, who claimed that his absences were disability-related which thus meant his dismissal constituted unlawful discrimination.
The Spanish courts asked the ECJ whether the Framework Directive meant that Spanish employers could not rely on the Workers’ Statute to dismiss disabled employees for intermittent absences arising from their disability. In reply the ECJ ruled that such dismissals were potentially indirectly discriminatory, given disabled employees are more likely to have absences than non-disabled employees and thus more likely to be dismissed. However, the ECJ also emphasised that any such dismissal was not inherently unlawful as long as it could be objectively justified provided it was indeed based on a legitimate aim, and operates through appropriate and necessary means of achieving said aim.
Of course, if any of these dismissals can be objectively justified, the question is where one draws the line between what is and what isn’t a legitimate aim. The ECJ ruled that this is a question for the national courts to decide, although they intimated that combatting absenteeism, for one, is legitimate. There are multiple potentially relevant factors to consider when deciding this, such as the requirement for employers to make reasonable adjustments for workers placed at a disadvantage by a disability, for example.
So, where does this judgement leave us in the UK? Well, despite intermittent sickness absence policies usually being found in employment handbooks, this judgment supports the stance adopted by UK courts and tribunals in applying similar policies to disabled employees. Essentially, it remains the case that these policies are not inherently unlawful in their application to disabled workers. However, employers may still very much be under a duty to make reasonable adjustments, or be required to justify any dismissal or absence-related warning. Ultimately, such cases will always be fact-sensitive, and employers should endeavour to remember this.
If you have concerns about sickness absence in your organisation, don’t miss our Spotlight sessions on Cutting the Cost of Sickness Absence which are being held on 8th February in Edinburgh and 15th February in Glasgow. Click here to book your place.