# C_2019383EN.01002901.xml

| 11.11.2019 | EN | Official Journal of the European Union | C 383/29 |
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11.11.2019

EN

Official Journal of the European Union

C 383/29

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Judgment of the Court (First Chamber) of 11 September 2019 (request for a preliminary ruling from the Juzgado de lo Social No 3 de Barcelona — Spain) — DW v Nobel Plastiques Ibérica SA

(Case C-397/18) (1)

(Reference for a preliminary ruling - Social policy - Directive 2000/78/EC - Equal treatment in employment and occupation - Article 2(2)(b)(ii) and Article 5 - Prohibition of any discrimination based on a disability - Worker particularly susceptible to occupational risks within the meaning of national law - Existence of a ‘disability’ - Dismissal for objective reasons based on criteria of productivity, multi-skilling in the undertaking’s posts and absenteeism - Particular disadvantage for disabled persons - Indirect discrimination - Reasonable accommodation - Individual who is not competent, capable and available to perform the essential functions of the post concerned)

(2019/C 383/31)

Language of the case: Spanish

Referring court

Juzgado de lo Social No 3 de Barcelona

Parties to the main proceedings

Applicant: DW

Defendant: Nobel Plastiques Ibérica SA

Interveners: Fondo de Garantía Salarial (Fogasa), Ministerio Fiscal

Operative part of the judgment

| 1. | Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that the state of health of a worker categorised as being particularly susceptible to occupational risks, within the meaning of national law, which prevents that worker from carrying out certain jobs on the ground that such jobs would entail a risk to his or her own health or to other persons, only falls within the concept of ‘disability’, within the meaning of that directive, where that state leads to a limitation of capacity arising from, inter alia, 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 their professional life on an equal basis with other workers. It is for the national court to determine whether those conditions are satisfied in the main proceedings; |
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1.

Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that the state of health of a worker categorised as being particularly susceptible to occupational risks, within the meaning of national law, which prevents that worker from carrying out certain jobs on the ground that such jobs would entail a risk to his or her own health or to other persons, only falls within the concept of ‘disability’, within the meaning of that directive, where that state leads to a limitation of capacity arising from, inter alia, 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 their professional life on an equal basis with other workers. It is for the national court to determine whether those conditions are satisfied in the main proceedings;

| 2. | Article 2(2)(b)(ii) of Directive 2000/78 must be interpreted as meaning that dismissal for ‘objective reasons’ of a disabled worker on the ground that he or she meets the selection criteria taken into account by the employer to determine the persons to be dismissed, namely having productivity below a given rate, a low level of multi-skilling in the undertaking’s posts and a high rate of absenteeism, constitutes indirect discrimination on grounds of disability within the meaning of that provision, unless the employer has beforehand provided that worker with reasonable accommodation, within the meaning of Article 5 of that directive, in order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, which it is for the national court to determine. |
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2.

Article 2(2)(b)(ii) of Directive 2000/78 must be interpreted as meaning that dismissal for ‘objective reasons’ of a disabled worker on the ground that he or she meets the selection criteria taken into account by the employer to determine the persons to be dismissed, namely having productivity below a given rate, a low level of multi-skilling in the undertaking’s posts and a high rate of absenteeism, constitutes indirect discrimination on grounds of disability within the meaning of that provision, unless the employer has beforehand provided that worker with reasonable accommodation, within the meaning of Article 5 of that directive, in order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, which it is for the national court to determine.

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(1)  OJ C 294, 20.8.2018.

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