Judgment;Summary — ECLI:EU:C:2024:53
Date: 2024-01-18
Language of the case: Spanish
Court formation: First Chamber
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-631/22 – 1 
Case C-631/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
7 October 2022 
Referring court: 
Tribunal Superior de Justicia de las Islas Baleares (Spain) 
Date of the decision to refer: 
19 September 2022 
Appellant: 
J. M. A. R 
Respondent: 
CaNaNegreta, S. A. 
  
Subject matter of the main proceedings 
A claim for unfair dismissal brought by a worker who was dismissed after he was 
declared to be totally and permanently unable to work, based on the fact that 
Spanish law does not recognise the need to make reasonable accommodation in 
the workplace in order to offer him a job appropriate to his circumstances, or to 
show that such accommodation entails disproportionate cost. 
Subject matter and legal basis of the request 
Request for a preliminary ruling pursuant to Article 267 TFEU whereby the Court 
of Justice is asked to rule on the compatibility of Spanish law concerning 
termination of employment following a declaration of total permanent incapacity 
with EU rules which require reasonable accommodation to be made for persons 
with disabilities (Article 5 of Directive 2000/78/EC), and on the concept of direct 
discrimination in Article 2(2) of that directive. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-631/22 
 
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Questions referred for a preliminary ruling 
1. Must Article 5 of Directive 2000/78/EC establishing a general framework 
for equal treatment in employment and occupation be interpreted, having 
regard to recitals 16, 17, 20 and 21 of the directive, Articles 21 and 26 of the 
Charter of Fundamental Rights of the European Union, and Articles 2 and 
27 of the United Nations Convention on the Rights of Persons with 
Disabilities (approved by Council Decision 2010/48/EC of 26 November 
2009), as precluding the application of a national rule of law which 
establishes that a worker’s disability (where the worker has been declared to 
be totally and permanently unable to perform his or her normal occupation, 
with no prospect of improvement) is automatic grounds for termination of 
the employment contract, with no prior requirement for the employer to 
comply with the obligation to make ‘reasonable accommodation’ as required 
by Article 5 of the directive in order to enable the individual to remain in 
employment (or to show that the requirement would impose a 
disproportionate burden)?  
2. Must Article 2(2) and Article 4(1) of Directive 2000/78/EC establishing a 
general framework for equal treatment in employment and occupation be 
interpreted, having regard to recitals 16, 17, 20 and 21 of the directive, 
Articles 21 and 26 of the Charter of Fundamental Rights of the European 
Union, and Articles 2 and 27 of the United Nations Convention on the 
Rights of Persons with Disabilities (approved by Council Decision 
2010/48/EC of 26 November 2009), as meaning that the automatic 
termination on grounds of disability of the employment contract of a worker 
who has been declared to be totally and permanently unable to perform his 
or her normal occupation, with no prior requirement for the employer to 
comply with the obligation to make ‘reasonable accommodation’ as required 
by Article 5 of the directive in order to enable the individual to remain in 
employment (or to show that the requirement would impose a 
disproportionate burden), constitutes direct discrimination, even though a 
rule of domestic law provides for termination of the contract? 
Provisions of European Union law relied on 
United Nations Convention on the Rights of Persons with Disabilities, approved 
on behalf of the European Community by Council Decision 2010/48/EC of 
26 November 2009 (OJ 2010 L 23, p. 35; ‘the UN Convention’) 
Recital (e) of the preamble; Article 1, ‘Purpose’; Article 2, ‘Definitions’, in 
particular the definitions of ‘discrimination on the basis of disability’ and 
‘reasonable accommodation’; and paragraph 1 of Article 27, ‘Work and 
employment’, in particular subparagraphs (h), (i) and (k). These provisions are 
reproduced verbatim. 
CANANEGRETA 
 
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Charter of Fundamental Rights of the European Union 
Article 21, ‘Non-discrimination’, and Article 26, ‘Integration of persons with 
disabilities’, both cited verbatim. 
Directive 2000/78/EC of 27 November 2000 establishing a general framework 
for equal treatment in employment and occupation 
Recitals 16, 17, 20 and 21; Article 1, ‘Purpose’; Article 2, ‘Concept of 
discrimination’; Article 3, ‘Scope’; and Article 5, ‘Reasonable accommodation for 
disabled persons’; all cited verbatim. 
Provisions of national law and case-law relied on 
Ley General de la Seguridad Social (General Law on Social Security) (‘LGSS’), 
as adopted on 30 October 2015 
According to Article 193 of the law, permanent incapacity applies where a worker 
displays serious reductions in physical or functional capabilities which can be 
objectively determined, are likely to be permanent, and reduce or eliminate his or 
her ability to work. The possibility that the individual concerned may recover the 
ability to work is not a bar to the classification if, medically, it is considered an 
uncertain or long-term possibility. 
Article 194 of the law defines the levels of permanent incapacity as follows: 
a) Partial permanent incapacity. 
b) Total permanent incapacity. 
c) Absolute permanent incapacity. 
d) Severe disability. 
Estatuto de los Trabajadores (Workers’ Statute; ‘ET’), as adopted on 
23 October 2015 
According to paragraph 1 of Article 49 of the statute, an employment contract will 
be terminated: (e) where the worker suffers death, severe disability, or total or 
absolute permanent incapacity, without prejudice to the provisions of 
Article 48(2). 
Pursuant to Article 48 of the statute, where the worker’s incapacity is likely to 
improve, thereby enabling the worker to return to his or her job, the employment 
relationship is to be suspended and the worker’s right to the job must be retained 
for a period of two years from the date of the declaration of permanent incapacity. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-631/22 
 
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Ley General de derechos de las personas con discapacidad y de su inclusión 
social (General Law on the rights of persons with disabilities and their social 
inclusion), as adopted on 29 November 2013 
Article 2 of the law defines the concept of reasonable accommodation as follows: 
necessary and appropriate modification and adjustments to the physical, social and 
attitudinal environment to meet the specific needs of persons with disabilities, 
where needed in a particular case, in an effective and practical manner, to 
facilitate access and participation and to enable persons with disabilities to enjoy 
or exercise all rights on an equal basis with others, unless such measures would 
impose a disproportionate or undue burden. 
According to Article 4, concerning individuals who enjoy rights under that law, 
persons with disabilities means individuals who have been awarded a permanent 
invalidity pension on grounds of total or absolute permanent incapacity or severe 
disability. 
Article 40 requires the adoption of measures to prevent or compensate for the 
disadvantages caused by disability in order to ensure full equality at work. 
According to Article 40(2), employers must take appropriate measures to adapt 
the workplace and enhance the accessibility of the undertaking having regard to 
the needs arising in each individual case in order to allow persons with disabilities 
to have access to employment, to carry out their work, to be promoted and to have 
access to training, unless such measures would place an excessive burden on the 
employer. In order to determine whether a burden is excessive, it is necessary to 
consider whether it is mitigated to a sufficient degree by the measures, assistance 
and public subsidies applying to disabled persons, and to take account of the 
financial and other costs entailed by those measures, the scale of the undertaking 
or organisation and its overall turnover. 
According to Article 63, the right of persons with disabilities to equal 
opportunities will be deemed to have been breached where there is direct or 
indirect discrimination or breach of the accessibility requirements or the 
requirement to make reasonable accommodation on account of or on grounds of 
disability. 
National case-law; judgment of the Social Division of the Tribunal Supremo 
(Supreme Court, Spain) No 142/2021 of 3 February 2021 
In that judgment, the Supreme Court stated the following: 
– Where an employment contract is terminated on grounds of total permanent 
incapacity pursuant to Article 49(1)(e) of the ET, there is no requirement for 
the employer to notify the worker in writing, or for any particular 
formalities, and therefore the absence of written notice does not constitute 
unfair dismissal. 
CANANEGRETA 
 
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– In the judgment of the Supreme Court of 12 July 1988, in view of the 
hypothetical possibility that, where a worker has been declared to have a 
total permanent incapacity, the employer might deploy the worker in a job 
other than his or her normal occupation, the court concluded that total 
permanent incapacity does not automatically give rise to termination of 
contract, whereas absolute permanent incapacity and severe disability do 
have such automatic effect. 
– Citing a judgment of the Supreme Court of 18 December 1989, the court 
confirmed that the fact that there is a possibility that an individual who has 
been declared to have a total permanent incapacity may be redeployed by the 
employer does not mean that the employer is required to novate the contract 
and to offer the worker a different job with the characteristics in question, 
unless the applicable law so requires; that is to say, the employer is not 
required to provide such a redeployment, unless required to do so by a 
collective agreement or contract, irrespective of the fact that there is nothing 
to prevent the employer from doing so. 
Succinct presentation of the facts and procedure in the main proceedings 
1 JMAR began working for CNN S.A. (an integrated waste management company) 
on 17 October 2012 in a full-time job as a driver of a waste collection lorry. On 
20 December 2016 he suffered an accident at work in which he fractured his right 
foot. 
2 The worker was classed as temporarily unable to work as the result of an accident 
at work until, on 18 February 2018, the Instituto Nacional de la Seguridad Social 
(National Social Security Institute) issued a decision bringing the period of 
temporary incapacity to an end and awarding the applicant compensation of 
EUR 3 120 for a permanent non-incapacitating injury. The worker filed a legal 
challenge to that decision on the grounds that he should have been classed as 
permanently unable to work. 
3 Before a decision was reached in the aforesaid legal action against the decision of 
18 February 2018, the worker agreed a change of job with his employer to one 
consistent with his condition following the accident. He therefore changed from 
driving heavy lorries to working with a vehicle that was easier to handle and 
required less physical effort and less driving time, which was compatible with his 
limitations. 
4 On 2 March 2020 judgment was given in the action referred to in the previous 
paragraph. In that judgment the worker was classed as having a total permanent 
incapacity to perform his normal occupation as a driver of a waste collection 
lorry; the judgment stated that, although the worker had been redeployed by the 
employer and was working, the state of his foot prevented him from driving a 
heavy lorry on a continuous basis, which is why he was ascribed that 
classification. The judgment classed him as having a total permanent incapacity 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-631/22 
 
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with effect from 8 June 2018 and awarded him the right to receive a monthly 
pension from that date. The judgment did not provide for the possibility of 
revising the classification of the worker’s circumstances on grounds of an 
improvement in his medical condition. 
5 On 13 March 2020, the employer notified JMAR of the termination of his 
employment on grounds of total permanent incapacity to perform his normal 
occupation. The employer based its decision on Article 49(1)(e) of the Workers’ 
Statute. 
6 JMAR brought a legal action against the termination on the grounds that the 
dismissal was discriminatory. The action was dismissed at first instance by 
judgment of 25 May 2021, on the grounds that the classification of total 
permanent incapacity to perform one’s normal occupation gives rise to 
termination of employment, and there is no legal obligation on the employer to 
redeploy the worker to another job within the same undertaking. 
7 JMAR lodged an appeal against that judgment with the referring court. 
The essential arguments of the parties in the main proceedings 
8 The referring court notes the objections raised by the employer and the public 
prosecutor’s office to the request for a preliminary ruling and rejects them as 
inoperative or as being founded on points which it considers to have been proven. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
9 The worker’s employment was terminated on 13 March 2020, because he was 
declared to be suffering a total permanent incapacity to perform his normal 
occupation, although since 6 August 2018 he had been working for the same 
employer in a different job consistent with his condition following the accident. 
The judgment at first instance dismissed the action for unfair dismissal on the 
grounds that the classification of total permanent incapacity to perform his normal 
occupation and the award of the applicable pension give rise to termination of his 
employment with the defendant employer pursuant to Article 49(1)(e) of the ET, 
and there is no legal obligation on the employer to redeploy him to another job 
within the same undertaking. 
10 The referring court notes that, according to Article 49(1)(e) of the ET and the 
case-law interpreting that provision, a declaration of total permanent incapacity to 
perform one’s normal occupation automatically gives rise to immediate 
termination of the employment contract, with no prior procedures or conditions. It 
notes specifically that the wording of the provision (‘the employment contract 
shall be terminated … where the worker suffers death, severe disability, or total or 
absolute permanent incapacity’) does not give the employer the power to 
terminate the contract but directly determines the termination of the contract. That 
CANANEGRETA 
 
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is why the Supreme Court argues, in its judgment No 142/2021, that where an 
employment contract is terminated on grounds of total permanent incapacity there 
is no requirement for the employer to notify the worker in writing, and therefore 
the absence of written notice does not constitute unfair dismissal. 
11 The referring court doubts whether Spanish legislation and case-law concerning 
the termination of an employment contract on grounds of a worker’s total 
incapacity comply with EU law on the protection of persons with ‘disabilities’ (a 
situation which applies to the appellant and which is not in dispute), for the 
reasons set out below. 
12 The referring court notes that Article 49(1)(e) of the ET does not include a 
requirement to attempt to make ‘reasonable accommodation’ in the job performed 
by the worker with disabilities as a condition or prerequisite for termination of 
contract, which occurs automatically. The rule has remained unchanged since the 
ET was originally enacted by means of Law 8/1980 of 10 March 1980, and was 
not amended on the enactment of Directive 2000/78, nor on the ratification by 
Spain of the international Convention on the Rights of Persons with Disabilities 
on 3 December 2007, nor on the enactment of the General Law on the rights of 
persons with disabilities, which establish the requirement to make ‘reasonable 
accommodation’ (unless it would impose a disproportionate burden). Under the 
latter two pieces of legislation, failure to comply with that requirement constitutes 
discrimination (Article 2(1) of the Convention and Article 63 of the General Law). 
The referring court sets out this historical background in order to show that, in 
drafting Article 49(1)(e) of the ET, regard was had only to the interests of the 
employer (to dispense with a worker who was no longer able to work, at no cost 
and with no procedures), with no regard to the interests or protection of the 
worker in that situation so as to safeguard his or her right to equality and non-
discrimination. 
13 The case-law of the Supreme Court has never considered the possibility that 
termination of contract pursuant to Article 49(1)(e) of the ET may be 
discriminatory in its nature or effect because there is no requirement to attempt to 
make ‘reasonable accommodation’. We infer that the Supreme Court’s 
interpretation is that the applicable legislation does not include the requirement for 
‘reasonable accommodation’ established in Article 5 of Directive 2000/78 (and in 
Article 27(1) of the UN Convention, and even in Article 40(2) of the General Law 
on the rights of persons with disabilities) in order to make termination of an 
employment contract conditional on showing that ‘reasonable accommodation’ is 
not possible or entails disproportionate cost, and that ‘redeployment’ (the only 
‘reasonable accommodation’ provided for) will only be required where stipulated 
by the employment contract or the applicable collective agreement. 
14 In the opinion of the referring court, the right of every disabled worker to 
‘reasonable accommodation’ established in Article 5 of Directive 2000/78 
includes not only the right to ‘have access to employment’ but also to ‘participate 
in, or advance in employment’, that is, to ‘continue’ in employment after he or she 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-631/22 
 
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has acquired a disability. The statement in Article 27(1) of the Convention is also 
clear when it establishes that ‘States Parties shall safeguard and promote the 
realisation of the right to work, including for those who acquire a disability during 
the course of employment, by taking appropriate steps’. 
15 The Court of Justice has noted in its judgment of 10 February 2022, HR Rail, 
C-485/20, that ‘Directive 2000/78 must, as far as possible, be interpreted in a 
manner that is consistent with the UN Convention’ and that ‘Article 2, third 
indent, of the UN Convention provides that discrimination on the grounds of 
disability includes all forms of discrimination, including denial of reasonable 
accommodation’ (paragraph 38), and that ‘the employer must 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’ 
(paragraph 39). In point 68 of the Opinion delivered in that case, the Advocate 
General maintains that ‘as far as possible, people with disabilities should be kept 
in employment rather than being dismissed for unfitness, which should only be a 
last resort’, adding that ‘reasonable accommodation is a preventive measure to 
maintain the employment of disabled persons’. 
16 The referring court notes that, before the worker was classed as suffering a total 
permanent incapacity to perform his normal occupation as a driver, the employer 
had already redeployed him in a job that was compatible with his limitations, 
thereby demonstrating that ‘reasonable accommodation’ was feasible; that did not 
prevent the worker from being dismissed on the grounds of the aforesaid 
classification, since the employer was legally able to rely on Article 49(1)(e) of 
the ET. The referring court therefore also wonders whether that automatic 
termination of the employment contract must be classed as ‘direct discrimination’ 
pursuant to Article 2(2)(a) of Directive 2000/78, since the dismissal is solely a 
consequence of the worker’s disability (and not the result of ‘objective business 
reasons’ or a ‘neutral’ selection criterion which has an adverse outcome for the 
worker because of his disability). 
17 The Court of Justice has never ruled on a similar rule in another Member State 
which provides for automatic termination of employment solely on grounds of a 
declaration of total permanent incapacity to perform one’s normal occupation, 
with no pre-conditions and no compensation. The questions referred for a 
preliminary ruling are clearly relevant: a reply stating that the unconditional 
provision for termination of contract in Article 49(1)(e) of the ET is not 
discriminatory on grounds of disability nor contrary to the requirement to make 
reasonable accommodation would endorse the employer’s decision to terminate 
the contract as lawful. However, if the reply were to confirm the suggestion that 
such a power of termination may be discriminatory, the dismissal must be deemed 
void for discrimination, because the sole reason for the dismissal is the applicant’s 
disability.