AB Insight: Reasonable accommodation requires reassignment

Erika Kovács, Vienna University of Economics and Business

The CJEU specified the notion of reasonable accommodation for people with disabilities in its recent judgment HR Rail SA, C-485/20, ECLI:EU:C:2022:85. The applicant in the main proceedings was diagnosed with a heart condition that required the fitting of a pacemaker. Since that device was incompatible with the repeated exposure to electromagnetic fields, the applicant was no longer capable of performing the duties of a railway maintenance technician for which he had originally been recruited. His traineeship was terminated.

According to the first sentence of Article 5 of Directive 2000/78/EC, in order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. Meeting the needs of disabled people at work plays an important role in combating discrimination on grounds of disability.

The Court has already addressed the question, under which circumstances the dismissal of a disabled person is permissible. In the cases Ruiz Conejero, C-270/16, ECLI:EU:C:2018:17 and DW, C-397/18, ECLI:EU:C:2019:703, the CJEU pointed out, that the dismissal of a disabled worker on the ground of fulfilling the selection criteria for dismissal (low productivity, a low level of multi-skilling in the undertaking’s posts and a high rate of absenteeism) constitutes indirect discrimination on grounds of disability (DW, par. 71). However, if the employer made sufficient adjustments in the working environment and in the workplace before the dismissal and those adjustments can be regarded as appropriate measures for a reasonable accommodation within the meaning of Article 5 of Directive 2000/78, then the dismissal was not discriminatory (DW, par. 68-69).

HR Rail SA has two characteristics differing from the earlier cases. First, the applicant was a trainee. The CJEU pointed out that the concept of a worker extends to a person who serves a traineeship or apprenticeship, if he or she performs a genuine and effective activity for and under the direction of an employer. Consequently, the employer was obliged to adopt reasonable accommodation measures (even) for trainees.

Second, the applicant was not able to perform his duties at all. In the earlier cases, the workers concerned were only partially incapable to perform their tasks, had lower productivity or were more often sick. Therefore, the accommodation measures did not involve the complete abandonment of their positions and reassignment. The question here, then, was whether the concept of reasonable accommodation goes as far as to require the assignment to another position for which the disabled person has the necessary competence, capability and availability.

The Court argued that the adaptation of the workplace according to recital 20 of the Preamble of the Directive 2000/78/EC should have priority over the assignment of another job (par. 41). However, if a worker becomes permanently incapable of remaining in his or her job because of the onset of a disability, reassignment may constitute an appropriate measure within the meaning of Article 5 of Directive 2000/78 (par. 43). The CJEU emphasised that the requirement of transferring a disabled person to another position exists only if there is at least one vacancy that the worker can fill. It is for the national court to decide, whether this measure would impose a disproportionate burden on the employer. In making that assessment, the court should take into account that the applicant at issue had already been transferred to another post.

The HR Rail SA judgment made it clear that the employers have to check the possibility of reassignment before dismissing disabled workers on the ground that they are incapable performing their duties. The extent of this obligation must be determined on a case-by-case basis. Therefore, much uncertainty remains as to how this principle should work in practice.