EELA Updates

Case report

2017-04-01

Belgium

2017/4 Obesity may constitute a disability even if it is falsely presumed (BE)

For the first time, a Belgian court has relied on the Kaltoft case, which holds that obesity may constitute a disability. That case gives rise to protection against discrimination, according to the Labour Tribunal of Liège, even if it is falsely presumed. This is the case where an employer sends an email to an applicant stating that the applicant cannot be hired because his or her obesity is a disability in relation to the job.

Tribunal du Travail de Liège (Labour Tribunal of Liège), 2016-06-20

Summary

2017-04-01

2017/4 Obesity may constitute a disability even if it is falsely presumed (BE)

For the first time, a Belgian court has relied on the Kaltoft case, which holds that obesity may constitute a disability. That case gives rise to protection against discrimination, according to the Labour Tribunal of Liège, even if it is falsely presumed. This is the case where an employer sends an email to an applicant stating that the applicant cannot be hired because his or her obesity is a disability in relation to the job.

Tribunal du Travail de Liège (Labour Tribunal of Liège), 2016-06-20

Court watch

2017-04-01

ECJ 1 December 2016, case C-395/15 (Daouidi), Discrimination

A ‘temporary’ inability to work may qualify as a ‘long-term’ limitation within the meaning of the ECJ’s case law on Directive 2000/78. Whether this is the case is for the national court to determine. The court may take into account that it is not clear how long the person may take to recover.

European Court of Justice (ECJ), 2016-12-01

Summary

2017-04-01

ECJ 1 December 2016, case C-395/15 (Daouidi), Discrimination

A ‘temporary’ inability to work may qualify as a ‘long-term’ limitation within the meaning of the ECJ’s case law on Directive 2000/78. Whether this is the case is for the national court to determine. The court may take into account that it is not clear how long the person may take to recover.

European Court of Justice (ECJ), 2016-12-01

Case report

2016-12-01

Germany

2016/60 Special protection for disabled employees against termination of employment – international apsects (GE)

An employee may bring a claim for invalid termination before the German Labour courts, irrespective of the law governing the employment relationship. In Germany, it is only possible for an employer to dismiss a severely disabled person if the competent state authority grants a permit enabling it to do so. However, this requirement is limited to those with employment agreements under German Law.

Bundesarbeitsgericht (Federal Labour Court), 2015-10-22

Summary

2016-12-01

2016/60 Special protection for disabled employees against termination of employment – international apsects (GE)

An employee may bring a claim for invalid termination before the German Labour courts, irrespective of the law governing the employment relationship. In Germany, it is only possible for an employer to dismiss a severely disabled person if the competent state authority grants a permit enabling it to do so. However, this requirement is limited to those with employment agreements under German Law.

Bundesarbeitsgericht (Federal Labour Court), 2015-10-22

Case report

2016-06-01

Belgium

2016/21 The attitude/behaviour of an employer towards an employee who partially resumes work after long-term incapacity can constitute harassment and discrimination (BE)

The Belgian Labour Court decided in this case that the attitude/behaviour of an employer towards an employee constitutes harassment and discrimination, as the behaviour was such that the employee could have had the impression that he could lose his job because of his state of health. The employee resumed work after long-term incapacity owing to heart disease, but only on a part-time basis.The Court considered that the successive actions of the employer towards his employee were aimed at ending his employment rather than actively promoting reintegration. Such behaviour, on the facts, could be considered as harassment and discrimination.Moreover, the Court specified that the health of the employee, who had partially resumed work after being off sick for heart disease, could be regarded as a disability in accordance with EU Directive 2000/78. The Court explicitly referred to the ECJ HK Danmark case.

Arbeidshof Brussel (Labour Court of Brussels), 2015-11-17

Summary

2016-06-01

2016/21 The attitude/behaviour of an employer towards an employee who partially resumes work after long-term incapacity can constitute harassment and discrimination (BE)

The Belgian Labour Court decided in this case that the attitude/behaviour of an employer towards an employee constitutes harassment and discrimination, as the behaviour was such that the employee could have had the impression that he could lose his job because of his state of health. The employee resumed work after long-term incapacity owing to heart disease, but only on a part-time basis.The Court considered that the successive actions of the employer towards his employee were aimed at ending his employment rather than actively promoting reintegration. Such behaviour, on the facts, could be considered as harassment and discrimination.Moreover, the Court specified that the health of the employee, who had partially resumed work after being off sick for heart disease, could be regarded as a disability in accordance with EU Directive 2000/78. The Court explicitly referred to the ECJ HK Danmark case.

Arbeidshof Brussel (Labour Court of Brussels), 2015-11-17

Case report

2016-06-01

Denmark

2016/26 Dismissal of an employee with a disabled child was not discriminatory by association (DK)

It was neither direct nor indirect discrimination when a municipality dismissed a childminder with a disabled child, since the decision to dismiss was based on the interests of safeguarding children in the municipality’s childminding services, by not taking them out of their usual environment and placing them with a childminder they did not know.

Højesteret (Supreme Court), 2016-04-27

Summary

2016-06-01

2016/26 Dismissal of an employee with a disabled child was not discriminatory by association (DK)

It was neither direct nor indirect discrimination when a municipality dismissed a childminder with a disabled child, since the decision to dismiss was based on the interests of safeguarding children in the municipality’s childminding services, by not taking them out of their usual environment and placing them with a childminder they did not know.

Højesteret (Supreme Court), 2016-04-27