Temporary incapacity may be considered a ‘long-term’ disability

Employees who are disabled are protected from discrimination under employment law.

Disability is usually permanent and long term. The European Court of Justice (ECJ) was asked to consider whether short-term (temporary) incapacity of uncertain length could be considered long-term incapacity and, therefore, protected from disability discrimination under EU Equal Treatment law.

Case: Daouidi (D) v Bootes Plus SL and others

D worked in a restaurant in Spain. He slipped on the kitchen floor at work, dislocated his elbow and took sickness absence while the injury healed.

He was dismissed 7 weeks later while still off sick. The letter of termination stated that he “did not meet the expectations of the undertaking or perform at the level the undertaking considers appropriate”. D believed that the real reason for his dismissal was that he was off sick and unable to return to work because of his injury.

D made a claim to a Spanish tribunal for disability discrimination based on the time when he was temporarily off sick.

The Spanish court considered whether D had a valid disability discrimination claim. It asked the ECJ for guidance about whether being incapacitated for a short, but unknown, length of time could be a disability under EU law.

The ECJ held that incapacity must be ‘long term’ to amount to a disability. But what constitutes ‘long term’ was unclear. The Court considered that long-term incapacity should ‘be given an autonomous and uniform interpretation throughout the European Union’. It said that a short-term (temporary) incapacity could be considered a long-term incapacity if, at the time of the alleged discrimination:

  • There was no clearly defined prediction about how long the individual would take to recover from a short-term injury or illness, or
  • The incapacity was likely to be significantly protracted before the person recovered.

The Court held that these questions could only be decided based on the facts of each case. This means that national courts would have to decide whether an incapacity was long term based on the evidence presented.

What this means for you

Under UK law, a disability is considered long term if it has lasted or is likely to last for 12 months. When an employee is off sick, you should request medical evidence to assess how long their absence is likely to last. If disability discrimination protection might apply, you should also consider whether you need to make any reasonable adjustments to help the employee to return to work so that you limit the risk of a discrimination claim.

To ensure that you can get your staff back to work quickly and in good health, give Hannah a call on 01273 789 979 to discuss your business health insurance needs.

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