The recent European Court of Justice (ECJ) decision in the Spanish case of Ruiz Conejero v Ferroser Servicios Auxiliares SA (C-270/16) is a reminder that dismissing for absence when set trigger points are reached has the potential to generate indirect disability discrimination issues.
Mr Ruiz Conejero worked for a company that provided cleaning services to a hospital. He suffered from degenerative joint disease, aggravated by obesity, a condition that amounted to a disability.
As in the UK, under Spanish law workers have the right not to be discriminated against either directly or indirectly on the basis of a protected characteristic, including disability. Article 52(d) of the Workers' Statute provides that (subject to a number of specific exceptions) a worker's contract may be terminated for intermittent absences that amount to 20% of working hours in two consecutive months if the worker's absences in the previous 12 months total 5% of working hours, or 25% of working hours in four non-consecutive months.
Between 2014 and 2015 Mr Ruiz Conejero was absent from work on a number of occasions, some of which related to his back problem, others for different non-disability related reasons.
Mr Ruiz Conejero was dismissed as a result of the fact that the cumulative duration of his absences had exceeded the limits laid down in Article 52(d). He had been absent for 20% of his working time in March and April 2015 and for 5% of his working time during the previous 12 months.
When Mr Ruiz Conejero sought the annulment of his dismissal on the basis that it constituted discrimination based on disability, the Spanish Court referred the question of whether its national law discriminated against disabled workers to the ECJ.
European Court of Justice decision
The ECJ held that there is potential for Article 52(d) to operate in a way that amounts to indirect discrimination, as a disabled person is more likely than a non-disabled person to have absences and to reach the limits set down in Article 52(d).
However, indirect discrimination only amounts to unlawful behaviour if it cannot be objectively justified. The test of objective justification is the same as in the UK and involves the employer establishing that the practice in question is a proportionate means of achieving a legitimate aim. There are two parts to the test:
- Does the practice have a legitimate aim? To be legitimate, the aim must be legal, non-discriminatory in itself, and correspond to a real need on the part of the employer.
- Does the action taken amount to a proportionate means of achieving that aim? The reasonable needs of the employer must outweigh the discriminatory effect on the worker for the employer's actions to be justified.
The absence policy in the Ruiz Conejero case was found by the ECJ to have a legitimate aim, that of combatting absenteeism. The question then became whether the policy was proportionate, ie whether it struck the right balance between the interests of the employer and those of a disabled worker. This was noted to be a question that the Spanish Court needed to consider.
The ECJ provided some guidance for the Spanish Court, stating that it would be necessary to consider the effect of the policy on both parties. This should include the financial cost to the employer in light of the fact that in Spain companies not only have to bear the cost of covering short term absence but also have to pay a social security benefit for temporary incapacity during the first 15 days of absence, which they cannot claim back from the Social Security Treasury. The nature and reasoning behind the exceptions to the general rule in Article 52(d) would also be relevant.
In the UK the Ruiz Conejero scenario would generate not only a consideration of whether the arrangement was indirectly discriminatory but also the question of whether reasonable adjustments should and could be made to accommodate the disabled worker.
One of the most common types of adjustment sought by disabled workers is an adjustment to the terms of absence and ill health policies or rules to take account of their special situation. The focus is then on whether such adjustments are reasonable in the circumstances.
As a matter of principle, it is not a reasonable adjustment to ignore disability related absences entirely when calculating sickness levels. To do so would prevent the employer from having any control at all over the degree of absence of disabled employees. An employer does however have a duty to make reasonable adjustments in order to eliminate or reduce the substantial disadvantage that the application of an absence policy would otherwise cause a disabled worker. As with the test of objective justification, there is a balancing of the needs of the employer and those of the worker involved, in deciding whether an adjustment is reasonable. Crucially however, the balancing exercise is weighted more in favour of the worker when the question of reasonable adjustments is in issue. This is because when considering whether the application of an absence policy is objectively justified, an employment tribunal must respect the employer's material and substantial reason for the less favourable treatment. However, the test of whether an adjustment to the policy is reasonable is an objective one, and it is ultimately the employment tribunal's view of what is reasonable that matters.