Wider protection of disabled workers against discrimination

SD Worx Knowledge Centre

Source

Court of Justice 10 February 2022 C-485/20

A recent ruling of the European Court of Justice specifically deals with an employer's obligations with regard to a disabled worker. In some situations, the offer of another job may be necessary.

Reasonable adaptations

Discrimination against disabled persons is prohibited by law, including in the workplace. European and Belgian legislation even obliges the employer to take active steps to combat discrimination against disabled employees.

For example, an employer must make all reasonable adaptations to keep a disabled employee in employment. These concern both effective and practical measures. Think, for example, of making changes to the workplace, the equipment or the task distribution. Parttime work, teleworking or a progressive resumption of work are also possible options.

As long as the disabled employee is competent, able and available to perform the essential tasks of the job, the employer must support the employee concerned with appropriate measures.

Please note that the 'reasonable adaptations' are only mandatory as long as they do not constitute an unreasonable burden for the employer.

Transfer to another position

Whether an employer has made the necessary 'reasonable adaptations' is a concrete factual matter. The courts have already addressed the concept of 'reasonable adaptations' in a highly diverse manner. They often only judged within the context of the employee's position.

However, the European Court of Justice has recently extended the concept of 'reasonable adaptations'. Another position may also be a reasonable adaptation.

The facts make things clear. A maintenance employee on the railways was affected by a heart condition shortly after joining the company. He was fitted with a pacemaker and was also recognised as a person with a disability. It became impossible for them to continue working in their role, as a pacemaker cannot be in the vicinity of the electromagnetic radiation present near railway lines. The employee was not assigned another position, but was instead dismissed.

In the proceedings following the dismissal, the European Court was asked whether the employer should also have considered a transfer to another position as a 'reasonable adaptation'. The Court replied in the affirmative, clarifying that a reasonable adaptation could also involve a transfer to another position.

An important nuance here is that the reasonable adaptation may not be a disproportionate burden for the employer. This is also a factual issue. In doing so, we take into account the

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financial costs and resources, the size of the company and the possibility of obtaining public money or other forms of support. And, of course, there must be a suitable vacancy for the person concerned.

Conclusion

The reasonable adaptations that an employer must make to keep a disabled employee in work are not limited to the position held. A transfer to another available position in the organisation may also be an appropriate measure, insofar as this is not a disproportionate burden for the employer.

Consequences for the employer

If a disabled employee can no longer perform their job due to their disability, you must check which reasonable adaptations you can make. You should also consider a transfer to another available and suitable position.

Failure to take these appropriate measures may result in liability for damages.

How will this affect the public sector?

The consequences of this judgment apply to both the private and the public sector.

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