Summary 

Dismissal of a worker on sick leave on account of the exceedance of the limit of 180 days of sick leave per calendar year, may result in indirect discrimination based on disability.

Questions

1. Must Article 2(2) and Article 5 of Directive 2000/78/EC be interpreted as precluding national legislation which confers on a worker on sick leave a right to retain his or her post for a paid and renewable period of 180 days per calendar year, in addition to, in certain cases and at the request of that worker, an unpaid and non-renewable period of 120 days, without providing for specific rules for workers with disabilities?

2. Must Article 5 of Directive 2000/78 be interpreted as meaning that a national provision which provides, for the benefit of a worker on sick leave but without regard to his or her possible disability, for an unpaid post retention period of 120 days, in addition to a paid post retention period of 180 days, constitutes ‘reasonable accommodation’ within the meaning of that article?

3. Must  Article 5 of Directive 2000/78 be interpreted as meaning that an additional period of paid leave, which would be entirely at the employer’s expense and which would be additional to the post retention periods provided for by national law, may be regarded as ‘reasonable accommodation’ within the meaning of that article?

Ruling

1. Article 2(2) and Article 5 of Directive 2000/78/EC must be interpreted as not precluding national legislation which confers on a worker on sick leave a right to retain his or her post for a paid and renewable period of 180 days per calendar year, in addition to, in certain cases and at the request of that worker, an unpaid and non-renewable period of 120 days, without providing for specific rules for workers with disabilities, provided that:

–        that national legislation does not go beyond what is necessary to achieve the social policy aim of ensuring the ability and availability of the worker to carry out his or her professional activity, and that

–        that national legislation does not prevent full compliance with the requirements laid down in that Article 5.

2. Article 5 of Directive 2000/78 must be interpreted as meaning that a national provision providing, for the benefit of a worker on sick leave but without regard to his or her possible disability, for an unpaid post retention period of 120 days, in addition to a paid post retention period of 180 days, does not constitute ‘reasonable accommodation’ within the meaning of that article.