Employees, including those undergoing traineeship, may be entitled to be reassigned to a new post due to a disability, the Court of Justice of the European Union (CJEU) has recently affirmed. However, such a right is not absolute.
EU law seeks to ensure the equal treatment of people at the workplace, be it in the private or public sector, irrespective of religion or belief, disability, age or sexual orientation. Any form of direct or indirect discrimination by an employer on any of these grounds is prohibited.
Thus, employers are obliged to offer “reasonable accommodation” to a disabled person to access employment, participate therein and advance in his/her role, as well as to undergo any necessary training. The adoption of any necessary measures to ensure this must not impose a disproportionate burden on the employer.
The facts of this case were briefly as follows.
A person was recruited as a railway track maintenance technician and started his period of traineeship in the said role. He was eventually diagnosed with a heart condition that required the fitting of a pacemaker and was recognised as having a disability by the relevant national health authorities.
The trainee was eventually declared by the company’s medical team as being permanently unfit to perform the duties for which he had been recruited. He was reassigned a new role by the employer but was dismissed soon after, with a ban on his recruitment for a period of five years to the grade at which he had been recruited.
In accordance with company policy, trainees recognised as having a disability and no longer capable of performing their duties did not benefit from the right to a reassignment within the undertaking. The trainee filed an action to annul the company’s decision to terminate his employment.
Striking a balance between the obligations and rights of employers and employees as defined at law is in practice not always an easy task
The national court considering the case filed a preliminary reference before the CJEU, requesting guidance on the interpretation of the relevant EU law providing for equal treatment in employment and occupation.
The court affirmed that EU law seeks to ensure that all people benefit from equal treatment “in matters of employment and occupation” by providing effective protection against discrimination, including on grounds of disability. The law applies not only to conditions for access to employment but also to access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining.
The CJEU concluded that the scope of the law was wide enough to ensure that such safeguards extend even to trainees. The fact that the employee was not recruited on a permanent basis when he was dismissed was irrelevant in ascertaining whether he falls within the scope of the relevant law.
The CJEU maintained that the legal obligation of employers to provide “reasonable accommodation” to people with disabilities means that the employer must adopt appropriate measures to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer.
The law itself contemplates a non-exhaustive list of effective and practical measures that may be adopted by the employer to accommodate a disabled person. Such measures may include adapting the premises and equipment, patterns of working time, the distribution of tasks or the provision of training.
The court affirmed that reassignment to another post within the same company is yet another appropriate measure that an employer can adopt to accommodate an employee who becomes permanently incapable of performing the tasks originally assigned.
Such a wide interpretation is aligned with the objective of the law, which is that of ensuring that any barriers that impede the full and effective participation of disabled people in professional life on an equal basis with other employees are eradicated.
Nonetheless, the CJEU also observed that an employer is not obliged to take measures that would impose a “disproportionate burden” on it. In ascertaining this, account should be taken of the financial costs entailed, the scale and financial resources of the undertaking and the possibility of obtaining public funding or any other assistance.
Furthermore, an employer is obliged to reassign a disabled person to another job only if there is at least one vacancy within the company for a role that the relevant employee is capable of fulfilling.
Striking a balance between the obligations and rights of employers and employees as defined at law is in practice not always an easy task. Such judgments serve to provide some clarity in an area of law that is often the source of disputes due to legal uncertainty.