EELC Law Review 2019: Disability and gender discrimination

By: Peter Schöffmann (Vienna University of Economics and Business)

The field of anti-discrimination law saw a wide range of decisions by the ECJ as well as national courts.
In case C-192/18, the ECJ dealt with the retirement reform affecting the Polish Supreme Court. The retirement age for female justices was lowered to 60 and for males to 65 years. Aimed at a severe limitation of the independence of the judiciary, it also posed a gender discrimination. The Commission initiated an infringement proceeding. Subsequently, the ECJ held that the reform posed a gender discrimination.
Gender discrimination was also the topic of the ECJ case Safeway (C-171/18), which dealt with a firm-level pension fund. Initially it provided for a retirement age of 65 for men and 60 for women. In the wake of the Barber case the trust deed was altered. In 1996 the new retirement age was set at 65 for both genders. This new rule took effect retroactively from 1991 onwards. However, the ECJ held that such an implementation has to be sufficiently precise, clear and foreseeable in order to be consistent with the principle of legal certainty as financial consequences derive from such amendments. Article 157 TFEU (then Article 119 EC Treaty) therefore precludes such a retroactive implementation.
In Nobel Plastiques Ibérica (C-397/18), an employee was diagnosed with epicondylitis, a chronic and painful condition of the elbow. The condition qualified as an ‘occupational disease’ and led to the employee’s inability to perform her work. After the employee returned to work, she was assigned new tasks with a lower health risk. Eventually the employer terminated the employment relationship due to the employee not meeting the requirement of the tasks assigned and the high rate of absence. The ECJ held – in line with its settled case law – that it is for the national court to decide whether a certain condition can be considered a ‘disability’ within the meaning of Directive 2000/78, and further that the regulation put forward by the Directive does not require employers to maintain employees who are not competent or capable of performing the tasks contractually required.
The distinction between disability and sickness also concerned the case in EELC 2019/12, where an Austrian claimant argued that he suffered from health issues affecting his spine and that the Austrian Disability Employment Act covered his condition. Therefore, his dismissal should be rendered null and void as it was discriminatory. The Austrian courts considered at great length the difference between sickness and disability. The notion of disability in Austrian labour law requires a hindrance for the participation in professional life. However, this does not correspond to the purpose of the protection against discrimination. The stigma arising from disabilities requires a concept that goes beyond the employees’ capacity to meet their contractually owed performance. Such a concept is brought forward by the United Nations Convention of the Rights of Persons with Disabilities. The Austrian courts now adopt this more comprehensive approach by interpreting national law in conformity with the Convention.
A Danish case, EELC 2019/13, dealt with the requirement for a long-term impairment to constitute a disability. The employee was involved in a car accident. She was left both physically and mentally impaired. Although she tried to resume her work, her employer dismissed her eleven months after the accident. The High Court held that the impairment constituted a disability, but not a long-term one. The medical expert opinion noted that the symptoms experienced after such accidents are very individual. Therefore, a conclusive prognosis is not possible. The dismissed employee was not able to prove the long-term nature of her disability. For that reason the High Court dismissed her claim.
A Belgian case, EELC 2019/14, concerned the dismissal of an employee who made use of a time-credit scheme and reduced her weekly working time. Such employees can be dismissed, however, the employer has to prove that the termination is not linked to the reduction of working hours. In case of a retaliatory dismissal, the dismissed employee is entitled to an indemnity in lieu equalling a six months’ wage. The case raised the question whether the indemnity shall be paid based on the amount of working time before or after the reduction. The court (astonishingly) ruled out an indirect discrimination based on gender and held that the reduced working time shall be taken into account.
Indirect gender discrimination was also the topic of a German decision, EELC 2019/15. In a (more) convincing application of the concept, the Higher Administrative Court of Münster held that a minimum body height of 163 cm for applicants can put women at a disadvantage. However, body height is a justifiable standard in order to fulfil police duties.
In EELC 2019/16, a female university lecturer claimed that she was paid less than a male co-worker which constituted gender discrimination. However, the Irish Workplace Relations Commission referred to the ECJ’s Cadman ruling (C-17/05) and held that though they were performing equal work, the male co-worker was significantly more experienced. Therefore, discrimination could not be established.
A Romanian case, EELC 2019/17, concerned the different retirement age for women and men (63 and 65 respectively) and its repercussions for labour law. The (female) claimant, a civil servant, was dismissed after she reached the age of 63 and completion of the legal pension requirements. The Court of Appeal ruled that the termination of her employment relationship contradicted European law. Therefore, the respective Romanian provisions providing for the possibility of termination shall be rendered inapplicable.
In EELC 2019/42, the UK Court of Appeal applied the well-known concept of discrimination by perception. Accordingly, protection against discrimination also covers employees when they do not actually fulfil the protected characteristic; rather it is sufficient that they are perceived as disabled. It is noteworthy that in this case the employer was aware that the employee was not disabled at the relevant time, but expected her to become disabled due to decreasing hearing ability.
The Danish Western High Court, EELC 2019/43, dealt with an employee’s dismissal two days after her return from maternity leave. The court ruled that the proximity in time between maternity leave and dismissal does not inherently lead to a discriminatory dismissal. The employer was able to prove that the dismissal was due to (non-pregnancy/maternity-related) sickness absence and a decline in orders.