Opinion of the Advocate General — ECLI:EU:C:2017:788
Date: 2017-10-19
Language of the case: Spanish
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy;Anti-discrimination
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary — Judgment of the Court (Third Chamber), 18 January 2018 1. Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on the ground of disability — Definition of disability — Obesity of a worker unable, or able only to a limited extent, to perform his work for a long period — Included (Council Directive 2000/78) 2. Social policy — Equal treatment in employment and occupation — Directive 2000/78 — Prohibition of discrimination on the ground of disability — National legislation permitting, subject to certain conditions, the dismissal of an employee by reason of intermittent absences, even where justified — Worker’s absences resulting from illnesses linked to his disability — Not permissible — Exception — Pursuit of the objective of combatting absenteeism — Observance of the principle of proportionality — Determination by the national court (Council Directive 2000/78, Art. 2(2)(b)(i)) 1. See the text of the decision. (see paras 28-30) 2. Article 2(2)(b)(i) of Council Directive 2008/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation 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. It should be noted in that respect that a worker with a disability is, in principle, more exposed to the risk of being dismissed under Article 52(d) of the Workers’ Statute than a worker without a disability. Compared with such a worker, a worker with a disability has the additional risk of being absent by reason of an illness connected with his disability. He thus runs a greater risk of accumulating days of absence because of illness, and consequently of reaching the limits laid down in Article 52(d) of the Workers’ Statute. It is thus apparent that the rule in that provision is liable to place disabled workers at a disadvantage and so to bring about a difference of treatment indirectly based on disability within the meaning of Article 2(2)(b) of Directive 2000/78 (see, to that effect, judgment of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph 76). In the present case, it must be considered that combating absenteeism at work may be regarded as a legitimate aim, within the meaning of Article 2(2)(b)(i) of Directive 2000/78, since it concerns a measure of employment policy (see, to that effect, judgment of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph 82). It must, however, be ascertained whether the measures implemented by the national legislation in order to achieve that aim are appropriate and do not go beyond what is necessary in order to attain that aim. (see paras 39, 44, 45, 57, operative part)