A judgment of the European Court of Justice of 11 September 2019 considers that indirect discrimination on the grounds of disability can be found in the application of selection criteria for employees made redundant for economic reasons, when these are based on productivity, versatility and absenteeism.
On the facts
A company governed by Spanish law has adopted four (4) selection criteria with a view to dismissing some of its employees on economic grounds, including one described as "a worker particularly sensitive to certain risks".
The criteria were as follows:
- To be assigned to the processes of assembly and shaping of plastic tubes,
- Productivity <95%,
- Lack of versatility in the company's workstations and,
- High rate of absenteeism.
About the procedure
The equivalent of our French labour Court, namely the Labour Court number 3 of BARCELONA (Spain), obviously referred by an employee dismissed for economic reasons by the Spanish company, referred the matter to the European Court of Justice for a preliminary ruling on 30 May 2018.
At this stage, a few legal and/or procedural basics should be recalled.
On the hierarchy of rules and their interpretation:
The European provisions have a higher value than the rules of Spanish law, French law, etc. as long as the state to which a request is submitted is part of the European Union.
It is therefore up to the national courts of the Member States of the European Union to apply primary law (treaties) and secondary legislation (regulations, directives and decisions) of the European Union.
Thus, Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation takes precedence over the provisions of Spanish law and a fortiori French law.
Nevertheless, in the context of the application of European law, a reference for a preliminary ruling is the procedure which allows a national court or tribunal to ask the Court of Justice to rule on the interpretation or validity of European Union law in a dispute brought before it on its territory.
The national court or tribunal must therefore put a question to the European Court of Justice when the resolution of a dispute referred to it is conditional on the interpretation of a rule of Union law.
It is in this context that the Labour Court number 3 of Barcelona (Spain), referred a reference for a preliminary ruling to the Court of Justice for a preliminary ruling on whether "the concept of worker particularly sensitive to certain risks" within the meaning of Article 25 of Law 31/1995 is assimilated to that of "disability" within the meaning of Directive 2000/78/EC.
The real question is in fact whether the selection criteria used to dismiss a "worker particularly sensitive to certain risks" directly or indirectly violate the right to equal treatment of disabled persons recognised by Directive 2000/78.
On the scope of the decision:
The High Court ruled that three (3) of the four (4) selection criteria were likely to be indirectly discriminatory, in the event that the dismissed employee could be considered to have a disability, within the meaning of Directive 2000/78.
The criterion relating to the assignment to the processes of assembly and shaping of plastic tubes is indeed objective and neutral.
However, the second criterion, i.e. the criterion of productivity <95%, may have an indirect link with the physical impairment of the employee in question.
As for the third selection criterion linked to versatility in the company's positions, the aptitude for versatility, albeit with certain limitations, is necessarily conditioned indirectly by the disability.
The disability has necessarily limited the positions in which it can be assigned.
Finally, the absenteeism rate of the employee concerned may be indirectly linked to his or her disability, since absence from work may be explained by the time spent in care.
However, the Court specified that this indirect discrimination must be qualified by reasonable accommodation within the meaning of Article 5 of Directive 2000/78 in order to ensure compliance with the principle of equal treatment for people with disabilities.