Ms. Navas was employed by a catering company. She got sick and was recognised not in a position to return to work in the short term. After 8 months of absence from work her employer dismissed her without giving providing the reasoning of dismissal. Ms. Navas complained to the national court that she had been subject to discrimination because of her sickness and requested to be reinstated in her previous position.
Question referred to the CJEU by the national court
Although the EU law prohibiting discrimination specifically does not mention sickness as a ground of discrimination, does it cover also a situation where worker who has been dismissed by her employer solely because she is sick?
The Court firstly noted that the EU law aims to combat discrimination also on the grounds of disability, as regards employment and occupation. The concept of ‘disability’ must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life. The term ‘sickness’, however, does not mean the same as disability is usually permanent or lasts for prolonged periods of time. Therefore workers are not protected by the prohibition of discrimination on grounds of disability as soon as they develop any type of sickness. In addition, in the Court’s view sickness cannot be considered as a separate ground of the prohibited discrimination.
As regards disability, the Court added that the employers are obliged to provide reasonable accommodation for people with disabilities to enable a person with a disability to have access to, participate in, or advance in employment, unless such measures would impose a disproportionate burden on the employer. Yet, if the person concerned is not competent, capable and available to perform the essential functions of his post his dismissal cannot be considered discriminatory.