… The one with the reasonable accommodation measures

The CJEU decided last February on the case HR Rail. This case focused on reasonable accommodation for persons with disabilities and granted the Court yet another chance to further clarify the concept and implementation of it. The decision was especially important to provide clarification on two main points:

• The status of the employee (a trainee) in question should not preclude the application of the anti-discrimination legislation – Directive 2000/78/EC (EED)
• Whether job reassignment can be considered a reasonable accommodation measure, providing guidance on what should be considered disproportionate burden, and differences between reasonable accommodation and positive action.

This blogpost aims at summarizing the case and outlining the most important learnings, while linking those to the work of Equinet’s Equality Law in Practice Working Group.

The HR Rail case

The case involved a trainee recruited by HR Rail, which is the sole employer of railway staff of the Belgian railway. Once the trainee started his traineeship, he was diagnosed with a heart condition that required the fitting of a pacemaker, a device which is sensitive to the electromagnetic fields present on railway tracks. On that basis, he was recognised as having a disability by the Belgian Authorities and later found permanently unfit to perform the duties for which he had been recruited. He was then assigned to a warehouseman’s position. Nonetheless, not long after, he was dismissed with a ban on his recruitment for a period of five years to the grade at which he had been recruited, and his traineeship was terminated owing to his total and permanent incapacity to perform the duties for which he had been recruited. While HR Rail had a policy according to which staff members that would have a disability would be reassigned to another post, this was not a policy that was applicable to trainees. The trainee brought before the Conseil d’État (Council of State, Belgium) an action to annul the decision terminating his employment. The Conseil d’État asked the CJEU whether re-assignment to another available post could be considered as a reasonable accommodation measure:  “Must Article 5 of [Directive 2000/78] be interpreted as meaning that an employer has an obligation, in relation to a person who, due to his or her disability, is no longer capable of performing the essential functions of the post to which he or she was assigned, to assign him or her to another post, for which he or she has the requisite skills, capabilities and availability, where such a measure would not impose a disproportionate burden on the employer?” The Court formulated their answers based on the application of the EED, the UN Convention on the Rights of Persons with Disabilities (CRPD) and EU Charter of Fundamental Rights articles 21 (Non-discrimination) and 26 (Integration of persons with disabilities) (Charter).

Legal framework

Article 5 of the EED establishes that “In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, 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.” It also adds that “This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.” This article should be read in conjunction with the CRPD article 2 that establishes that “Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”. It affirms that “Any justification of the denial of reasonable accommodation must be based on objective criteria and analysed and communicated in a timely fashion to the person with a disability concerned. The justification test in reasonable accommodation is related to the length of the relationship between the duty bearer and the rights holder”. Additionally, the Charter articles mentioned above should be taken into account. The Court has held that the Directive is a specific expression, within the field that it covers, of the general prohibition of discrimination laid down in Article 21 of the Charter.  Article 26 of the Charter provides that the European Union is to recognise and respect the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community. All these legal provisions  form a legal framework against which reasonable accommodation measures should be tested. Examples of reasonable accommodation are given, for instance, in recital 20 of the EED, which states that “Appropriate measures should be provided, i.e., effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources.”

Regarding the measure: assigning the worker to another post

In this case, the Court accepts, that, as held by Advocate General where a worker becomes permanently incapable of remaining in his or her job because of the onset of a disability, reassignment to another job may constitute an appropriate measure in the context of reasonable accommodation within the meaning of Article 5 of Directive 2000/78 (paragraph 45). In doing this, the Court clarifies, following AG Rantos’ opinion that “as a matter of priority and as far as possible”, . By using an approach based on the social concept of disability, AG Rantos argues that the primary objective should be to adapt the working environment of the disabled person in order to enable them to participate fully and effectively in professional life on an equal basis with other workers. Where reasonable accommodation is not possible, practical measures should be implemented by the employer for the disabled person to remain in employment (where possible), such as a reassignment to another position.

Was the trainee entitled to the measure?

The Court, following AG Rantos’ opinion establishes that the fact that the staff member employed by HR Rail was not, at the time of his dismissal, recruited on a permanent basis, does not preclude his professional situation from falling within the scope of the EED. This implies that temporary staff members, interns and trainees should also benefit from protection under the Directive, and therefore reasonable accommodation provisions should apply to these cases as well. While that was a logical application of the legislation, taking into account the wider context of the Charter and the CRPD, the fact that the CJEU clarified this aspect will certainly make it easier for right holders to claim their rights.

How can (dis)proportionality be tested?

How is disproportionate burden assessed? Many factors need to be considered. For instance, similar demands cannot be made of an SME or a multinational corporation, such as the specific measure to be taken or the nature of the service or goods provided. The Court, following guidance provided in the HK Danmark decision (regarding a reduction of hours) and recital 21 of the EDD, took into account factors such as:

• the financial cost
• other costs, such as staff time, impact on productivity or the disruption involved
• the size and financial resources of the employer and the possibility of obtaining public funding or any other assistance

In this case, the Court states that the possibility of assigning a disabled person to another job is only available where there is at least one vacancy that the worker in question is capable of holding. Both the Court and the AG argued in favour of this approach. The effects should  not be disproportionate, which means that in practice, the reassignment of a disabled worker should not deprive another worker of his or her job or force the latter to swap jobs. This has further implications: this kind of measure will be available more easily in large companies, and it will largely depend on the extent of the adaptability of both the worker and the company.

Positive Action vs Reasonable Accommodation

Another issue highlighted by HR Rail, is the distinction between ‘reasonable accommodation’ within the meaning of Article 5 and ‘positive action’ within the meaning of Article 7 of the EED. HR Rail argued that interpreting the concept of ‘reasonable accommodation’ to include an obligation for the employer to seek another job within the company, would undermine this distinction. Why? Because that employer would have to provide alternative employment to a worker who does not fulfil the essential functions of the job concerned, outside the specific framework of ‘positive action’. In this, two main arguments were used by HR Rail (shared in the AG opinion): First, the disabled worker who no longer fulfils the essential functions of the post to which he or she has been initially assigned would be given another post, while other workers who could no longer perform those functions could be dismissed. Second, the disabled worker would be given priority for a vacancy for which they would not have competed with other potentially interested candidates – they might not necessarily be the most competent to carry it out, especially if they are still in training (paragraph 81 of the AG opinion). AG Rantos argues against this understanding making a very important differentiation. Positive action refers to measures that effectively eliminate or reduce actual instances of inequality affecting people with disabilities, which may exist in their social lives and, in particular, their professional lives. It aims to achieve substantive, rather than formal, equality by reducing those inequalities. On the other hand, reasonable accommodation measures are individual measures that target the situation of one specific individual.  Therefore, Article 7(2) of the EED (positive action) relates to measures concerning disabled persons as a group, and not to the actual situation of a worker with a specific disability, which is covered by Article 5 (reasonable accommodation). AG concluded therefore that one kind of measure does not exclude the other given the inherent complementarity of both to achieve substantive equality.

Conclusion

The Court did not miss the chance to clarify the scope of reasonable accommodation: not only the concept itself, but also to the extent of its application. Given its scope and the margin of appreciation of Member States, it remains to be seen how this will be interpreted at national level. I believe that significant clarifications were made, both on the ground of disability, and for right holders in general. The status of the worker does not preclude the need to offer and provide reasonable accommodation measures, as long as they do not impose a disproportionate burden on the employer. This is true to reasonable accommodation measures and so many other measures that are accepted but perhaps not encouraged under European anti-discrimination law, such as equality duties, positive action measures, etc. It would have been a great chance for the Court to follow this reasoning and reaffirm this principle of substantive equality.

Additional resources:

• Equinet Discussion Paper ‘Reasonable Accommodation for persons with disabilities: Exploring challenges concerning its practical implementation’, which includes
  • The applicable legal framework and the lack of awareness among duty bearers and the general public
  • Difference between reasonable accommodation and accessibility
  • Scope of the duty of reasonable accommodation
  • Procedural aspects regarding who has responsibility for designing a reasonable accommodation measure.
  • Annex compiling relevant case law regarding the topic of the publication, on the basis of which the analysis was done.
• Equality Bodies Supporting Good Practice on Making Reasonable Accommodation for People with Disabilities by Employers and Service Providers, An Equinet Good Practice Guide, 2014.
• The Equinet Report: Exploring positive action as a means to fight structural discrimination in Europe, 2022
• Written observations in applications nos. 34591/19 and 42545/19 Franc TOPLAK v. Slovenia and Iztok MRAK v. Slovenia, 28 July 2020
• Many Equality Bodies, such as the IHREC, offer support and/or guidance for employers when implementing these kinds of measures.
• The American Job Association network accommodation database
• Regarding the future of Equality legislation in Europe, including the Horizontal Directive,
  • Outcomes of the Townhall Discussion from 2018
  • Sythesis-Report_Future-of-Equality-Legislation-with-cover.pdf (equineteurope.org)

  The views on this blog are always the authors’ and they do not necessarily reflect Equinet’s position.