Commercial Law for Employers: Disability Related Absences and Successive Fixed-Term ContractsPosted in : Commercial Law for Employers on 10 April 2018
In this month’s ‘Commercial Law for Employers’ article, Kevin McVeigh, Partner and Head of the Corporate and Commercial Department in EDG Solicitors, considers the case of Carlos Enrique Ruiz Conejero v Ferroser Servicios Auxiliares SA and Ministerio Fiscal Case C-270/16, CJEU. In this case the claimant, Mr Conejero, suffered from a disease of the endocrine-metabolic system, namely, obesity. The CJEU was asked, in essence, whether Article 2 (2) (b) of Directive 2000/78 must be interpreted as precluding national legislation which provides that an employer may dismiss a worker on the grounds of intermittent absences from work, even if justified, in a situation where those absences are the consequence of illnesses attributed to the worker’s disability.
Kevin also considers the case of Giuseppa Santoro v Comune di Valderice, Presidenza del Consiglio dei Ministri Case C-494/16, CJEU whereby the CJEU was asked for a preliminary ruling on the interpretation of clause 5(1) of the Framework Agreement annexed to Council Directive 1999/70/EC, the purpose of which is to place limits on successive recourse to fixed-term employment contracts or relationships which are regarded as a potential source of abuse to the detriment of workers. Kevin states fixed-term contracts are common in many workplaces but warns that employers need to act with care to ensure that a chain of successive fixed-term contracts does not create a breach of EU law.
Carlos Enrique Ruiz Conejero v Ferroser Servicios Auxiliares SA and Ministerio Fiscal Case C-270/16, CJEU
Key Issues: Social Policy – equal treatment – disability
Case: Carlos Enrique Ruiz Conejero v Ferroser Servicios Auxiliares SA,Ministerio Fiscal,
Reference: Case C-270/16, CJEU (Third Chamber), 18 January 2018
Legislation: Directive 2000/78/EC
On 2 July 1993, Mr Ruiz Conejero was hired to work as a cleaning agent in a hospital in Cuenca (Spain), which is in the region of Castile-La Mancha (Spain). He was last employed in that post by the cleaning company Ferroser Servicios Auxiliares. Mr Ruiz Conejero had worked for this company without incident, as he had for the companies that had employed him previously. He never had any work-related problems nor had he been disciplined.
The Spanish authorities recognised that Mr Ruiz Conejero had a disability. The degree of his incapacity was set at 37%, of which 32% related to physical disability, characterised by disease of the endocrine-metabolic system (obesity) and functional limitation of the spine, the other 5% being made up of additional social factors. Between 2014 and 2015, Mr Ruiz Conejero was unfit for work during the following periods:
– from 1 to 17 March 2014 for acute pain requiring hospitalisation from 26 February to 1 March 2014;
– from 26 to 31 March 2014 for dizziness/nausea;
– from 26 June to 11 July 2014 for lumbago;
– from 9 to 12 March 2015 for lumbago;
– from 24 March to 7 April 2015 for lumbago; and
– from 20 to 23 April 2015 for dizziness/nausea.
According to the medical diagnosis, these health problems were caused by degenerative joint disease and polyarthrosis, aggravated by Mr Ruiz Conejero’s obesity. The medical services concluded that those problems were the result of the diseases which led to the recognition of Mr Ruiz Conejero’s disability. Mr Ruiz Conejero informed his employer, within the period and in the manner prescribed, of all the absences, by providing the relevant medical certificates confirming the reason for, and duration of, those absences.
By letter of 7 July 2015, Ferroser Servicios Auxiliares informed Mr Ruiz Conejero of his dismissal on the ground that the cumulative duration of his absences, albeit justified, had exceeded the limits laid down in the relevant Spanish law, namely, 20% of working time during March and April 2015, and that during the previous 12 months he had been absent for 5% of working time.
Mr Ruiz Conejero challenged the dismissal decision before the Juzgado de lo Social No 1 de Cuenca (Social Court No 1, Cuenca, Spain). Mr Ruiz Conejero does not dispute the truth or the accuracy of those absences from work or what they amount to in percentage terms. However, he claims that there is a direct link between those absences and his disability. He seeks annulment of his dismissal on the ground that it constitutes discrimination based on disability.
The referring court notes that Mr Ruiz Conejero of his own free will refused periodic medical examinations organised by the employer’s mutual insurance company, with the result that his employer did not know that Mr Ruiz Conejero had a disability at the time he was dismissed. According to the referring court, workers with disabilities are more exposed to the risk of being dismissed under Spanish law than other workers, whether the employer has knowledge of the disability or not. There is, therefore, a difference in treatment involving indirect discrimination based on disability within the meaning of Article 2(2)(b) of Directive 2000/78 and that difference in treatment cannot be objectively justified by a legitimate aim as required by Article 2(2)(b)(i).
In those circumstances, the Juzgado de lo Social No 1 de Cuenca (Social Court No 1, Cuenca) decided to stay the proceedings and to refer a question to the Court of Justice EU (CJEU) for a preliminary ruling on the interpretation of Directive 2000/78.
Consideration by CJEU
The CJEU noted that the purpose of Directive 2000/78 is to lay down a general framework for combating, as regards employment and occupation, discrimination based on any of the grounds referred to in that article, which include disability. In accordance with Article 3(1)(c) of that directive, the latter applies, within the limits of the areas of competence conferred on the European Union, to all persons, in both the public and private sectors, in relation to, inter alia, the conditions governing dismissal.
According to the CJEU’s case-law, the concept of ‘disability’ within the meaning of Directive 2000/78 has to be understood as referring to a limitation of capacity which results in particular from long-term physical, mental or psychological impairments which, in interaction with various barriers, may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers.
In the present case, the referring court states that Mr Ruiz Conejero was recognised as having a disability, within the meaning of national law, before his dismissal. In that regard, the court notes that he suffers from a disease of the endocrine-metabolic system, namely, obesity, and from functional limitation of the spine. However, the CJEU noted that the fact that Mr Ruiz Conejero is recognised as having a disability within the meaning of national law does not necessarily indicate that he has a disability within the meaning of Directive 2000/78.
In that regard, in order to establish whether, in the case in the main proceedings, Mr Ruiz Conejero’s situation falls within the scope of Directive 2000/78, it is for the referring court to determine whether his limitation in capacity must be regarded as a disability within the meaning of that directive.
The CJEU held that:
Article 2(2)(b)(i) of Council Directive 2000/78/EC of 27 November 2000 must be interpreted as precluding national legislation under which an employer may dismiss a worker on the grounds of his intermittent absences from work, even if justified, in a situation where those absences are the consequence of sickness attributable to a disability suffered by that worker, unless that legislation, while pursuing the legitimate aim of combating absenteeism, does not go beyond what is necessary in order to achieve that aim, which is a matter for the referring court to assess.
Why is this decision important?
Some employers may have a simplistic view on what is meant by “disability”. The increasing rates of obesity in the developed world mean that employers are increasingly having to deal with employees who suffer from a disability arising from their condition. This judgment highlights the need to consider the EU primary legislation when considering national legislation in this area.
Giuseppa Santoro v Comune di Valderice, Presidenza del Consiglio dei Ministri Case C-494/16, CJEU
Key Issues: Social Policy – fixed term work – penalty for misuse
Case: Giuseppa Santoro v Comune di Valderice, Presidenza del Consiglio dei Ministri,
Reference: Case C-494/16, CJEU (First Chamber), 7 March 2018
Legislation: Directive 1999/70/EC
From 1996 to 2002, Ms Santoro worked as a provider of socially useful services for the municipality of Valderice. She was then employed by that municipality under a continuous and coordinated contractual relationship until the end of 2010. On 4 October 2010 she entered into a part-time contract of employment with that municipality, which was due to end on 31 December 2012. The contract was extended three times until 31 December 2016, that is, for a total period of four years.
Ms Santoro brought an action before the Tribunale di Trapani (District Court, Trapani, Italy), seeking inter alia a declaration that those fixed-term contracts were unlawful, an order that the municipality of Valderice compensate in kind the loss suffered, by ordering the establishment of an employment relationship of indefinite duration, and, in the alternative, an order that the municipality award her financial compensation for that loss by compensating her and by granting her treatment, in legal terms, identical to that of a worker of that municipality employed for an indefinite period and having the same length of service as her.
The Tribunale di Trapani decided to stay the proceedings and to refer a number of questions to the Court of Justice EU (CJEU) for a preliminary ruling on the interpretation of Council Directive 1999/70/EC.
Consideration by CJEU
The CJEU recalled that the purpose of clause 5(1) of the Framework Agreement (which is set out in the annex to Council Directive 1999/70/EC) is to implement one of the objectives of that agreement, namely to place limits on successive recourse to fixed-term employment contracts or relationships, which are regarded as a potential source of abuse to the detriment of workers, by laying down as a minimum a number of protective provisions designed to prevent the status of employees from being insecure.
It follows that clause 5(1) of the Framework Agreement requires Member States, in order to prevent the misuse of successive fixed-term employment contracts or relationships, to adopt one or more of the measures listed in that provision, where their domestic law does not include equivalent legal measures. The measures listed in clause 5(1)(a) to (c), of which there are three, relate, respectively, to objective reasons justifying the renewal of such contracts or relationships, the maximum total duration of successive fixed-term employment contracts or relationships, and the number of renewals of such contracts or relationships.
The Member States enjoy a certain discretion in this regard since they have the choice of relying on one or more of the measures listed in clause 5(1)(a) to (c) of the Framework Agreement, or on existing equivalent legal measures, while taking account of the needs of specific sectors and/or categories of workers. In that way, clause 5(1) of the Framework Agreement assigns to the Member States the general objective of preventing such abuse, while leaving to them the choice as to how to achieve it, provided that they do not compromise the objective or the practical effect of the Framework Agreement.
Furthermore, where, as in the present instance, EU law does not lay down any specific penalties in the event that instances of abuse are nevertheless established, it is incumbent on the national authorities to adopt measures that are not only proportionate, but also sufficiently effective and a sufficient deterrent to ensure that the provisions adopted pursuant to the Framework Agreement are fully effective.
The CJEU held that:
Clause 5 of the framework agreement on fixed-term work concluded on 18 March 1999 (which is set out in the annex to Council Directive 1999/70/EC of 28 June 1999) must be interpreted as not precluding national legislation which, on the one hand, does not punish the misuse of successive fixed-term contracts by a public sector employer through the payment of compensation to the worker concerned for the lack of conversion of the fixed-term employment relationship into an employment relationship of indefinite duration, but, on the other hand, provides for the grant of compensation of between 2.5 and 12 times the last monthly salary of that worker together with the possibility for him to obtain full compensation for the harm by demonstrating, by way of presumption, the loss of opportunities to find employment or that, if a recruitment competition had been duly organised, he would have been successful, provided that such legislation is accompanied by an effective and dissuasive penalty mechanism, a matter which is for the referring court to verify.
Why is this decision important?
Fixed term contracts are common in many workplaces but employers need to act with care to ensure that a chain of successive fixed term contracts does not create a breach of EU law. The obligation to balance such contracts with a right to compensation or alternative employment requires careful consideration and appropriate legal advice.
More on Unfair Dismissal
- Baron v Capita Business Services Ltd 
- Can we still dismiss an employee for an act of gross misconduct which took place several months ago?
- In terms of “taking account of all the circumstances” before a dismissal for gross misconduct, what issues should we be considering?
- Do we still need to consider alternatives to dismissal in disciplinary proceedings involving allegations of gross misconduct?
- What factors should we be considering when determining whether an employee’s behaviour amounts to gross misconduct?
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