When does an illness or injury become a disability affording an individual protection under disability discrimination legislation? This is a question that both the UK Courts and the European Courts have grappled with over the years. The European Court of Justice recently considered this question in the Spanish case of Daouidi v Bootes Plus SL and ors.
Mr Daouidi worked as a kitchen assistant in a hotel restaurant in Barcelona. In October 2014, Mr Daouidi slipped on the kitchen floor while at work and dislocated his elbow. After two weeks off work, Mr Daouidi’s employers contacted him asking about when he would be able to return to work. Mr Daouidi said that he could not return immediately as his injury was continuing to cause him pain. In late November, Mr Daouidi received notice that he had been dismissed, allegedly on grounds of his poor performance. He raised claims for unfair dismissal and disability discrimination.
When Mr Daouidi’s claim was heard six months’ later in the Spanish courts, his arm was still in plaster and the medical prognosis about his recovery was uncertain. The court accepted that there was sufficient evidence to support Mr Daouidi’s case that the real reason for his dismissal was his temporary incapacity for work. The court then made a reference to the European Court of Justice (ECJ), asking whether Mr Daouidi could be considered as disabled for the purposes of the EU Equal Treatment Framework Directive given that the duration of his incapacity was uncertain.
The ECJ held that a dismissal because of temporary incapacity following a workplace accident could be considered as directly discriminatory on the ground of disability, provided that the worker’s incapacity is ‘long-term’. The ECJ said that whether or not the incapacity is sufficiently long-term for the definition of disability to be met is a question of fact for the national courts to determine based on an objective assessment of all of the evidence available (including medical assessments).
The difficulty experienced in this case was that the medical prognosis was uncertain, so the medical professionals assessing Mr Daouidi could not give any indication as to when he may be fully recovered and able to return to work. The ECJ did not give any helpful guidance about this particularly difficult situation, leaving it to the Spanish courts to make that determination.
If such a case were to be heard in the UK, the courts would look to the Equality Act 2010, which says that the effect of an impairment is ‘long-term’ if it has lasted, or is likely to last, for at least 12 months. Mr Daouidi had only been incapacitated for six months at the time his claim was heard, so possibly he would not have met the definition of disability within the Equality Act 2010, unless the Employment Tribunal decided (based on any evidence put before them) that his incapacity for work was likely to last for a further 6 months or longer.
So, the important message here is that an injury experienced by a worker or employee (whether it occurred outside of work or at work) may not come within the definition of a disability afforded protection under the Equality Act 2010 if the individual recovers, or is likely to recover, within a short period of time. If you are faced with a situation where the question of whether an individual has a disability or not arises, seeking advice from medical professionals about the timeframe for recovery is going to be absolutely key to making this assessment. If the medical prognosis is uncertain about recovery, then it may be prudent to err on the side of caution and treat the individual as having a disability within the definition set out in the Equality Act 2010.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).