Case law time. Disability and cumulative absences.

If you have an employee who is disabled, and who takes frequent time off due to his or her disability, can you dismiss them without running up against laws derived from EU employment directives?

Short answer: Yes, you can. But if you wanted a short answer you wouldn’t have come to me, would you my lovely readers? So what happened, what was the case, and why was it referred to the ECJ for a preliminary ruling? Read on.

Ruiz Conejero, who worked as a cleaning agent in a hospital, had taken several intermittent absences in 2014 and 2015, which were related to his disability and lack of mobility due to a combination of obesity, degenerative joint disease and polyarthrosis. The company employing him, Ferroser Servicios Auxiliares, relied on Article 52 of the Workers’ Statute in Spanish law and dismissed him in July 2015 on the grounds of cumulative absences.

Article 52 of the Workers’ Statute allows an employee to be dismissed for absence from work if the absence amounts to 20% of the employee’s working hours in two consecutive months, as long as the employee had taken off at least 25% of four non-consecutive months within the previous 12 months or 5% of the previous twelve months, even were the absences are justified. This law, as with most similar laws in European countries, is set up to combat excessive absenteeism, which can of course hurt both employers and economies alike.

There is no European wide framework relating to absence management so countries are free to legislate as they see fit, as long as it does not contravene other EU legislation. When such matters are thought to contravene EU law they can be referred to the ECJ, which is exactly what happened here in the case of Ruiz Conejero v Ferroser Servicios Auxiliares. Mr Conejero argued that, as his absences were caused by his disability, dismissing him amounted to indirect disability discrimination.

The ECJ were asked whether the Equal Treatment Framework Directive precluded the Spanish law on cumulative absences. It should be noted that this case was not about judging whether Mr Conejero was unfairly dismissed but about whether the Spanish Law relied upon for the dismissal was in fact legal.

The verdict:

“Article 2(2)(b)(i) of Council Directive 2008/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding national legislation under which an employer may dismiss a worker on the grounds of his intermittent absences from work, even if justified, in a situation where those absences are the consequence of sickness attributable to a disability suffered by that worker, unless that legislation, while pursuing the legitimate aim of combating absenteeism, does not go beyond what is necessary in order to achieve that aim, which is a matter for the referring court to assess.”

 

The verdict in actual words human beings might use:

The judgment first states that the the directive must be interpreted as saying countries are unable to create laws which conflict with the general framework for equal treatment. So initially this makes it sound like the Spanish Law should be illegal as it can potentially impact disabled employees more than abled. However, the court goes on to say that if the legislation is in the pursuit of a legitimate aim then it can be legally compliant with the Equal Treatment Framework Directive as long as it goes no further than what is necessary to achieve the aim. The legitimate aim in this instance is to combat absenteeism which has been an issue for a number of years in Spain. The courts did not make a ruling as to whether the Spanish legislation went further than necessary, but instead said that was a question for the national courts.

And so yes, disabled people can be dismissed if their disability causes them to be absent beyond the levels prescribed as acceptable under national law. And the national law can in fact be completely legal, despite appearing to contravene the equal treatment directive, if it is achieving a legitimate aim. However, in some ways this judgement could be considered a bit of a fudge. The judgement includes the caveat of “beyond what is necessary” without actually clarifying what that means.

What does this mean for HR departments in the EU? If you are following the law of the land then you don’t need to think to hard about this. This ruling supports the view that absence management policies do not need to differ between disabled and abled employees. This was reaffirmed recently in the UK Courts. In Jennings v Barts and The London NHS Trust and The London NHS Trust the employment appeals tribunal stated that exemption for the employee from the absence management procedure was not a reasonable adjustment.

I would advise that you ensure that disabled employees have the correct sorts of help available to them to enable them to work, and make sure that, if a disabled employee is off work due to disability, you’ve looked into making “reasonable” adjustments. Keep your company on the reasonable side of legally “reasonable” to ensure that their absences can’t be attributed to the company. But once you’ve done that, if someone is taking a lot of time off beyond what they’re legally (or reasonably where there is no such legislation) entitled to, they can be dismissed.

What does it mean for the disabled? It basically means that, if you’re disabled, the time taken off for a disability can be taken into consideration when an employer calculates cumulative absences in line with national legislation. Employers should still make reasonable adjustments where possible but they do not have to disregard absences related to disability.

Most reasonable employers understand that from time to time people will require time off and will value disabled employees as much as abled employees. However, you should know that there is currently no guarantee that the ECJ would come to your aid should you face dismissal for prolonged or frequent absences.

 

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