DW v Nobel Plastiques Ibérica SA.
Date: 2019-09-11
39


In that regard, it must be recalled that the European Union approved the UN Convention by way of Decision 2010/48. The provisions of the convention are thus, from the time of that decision’s entry into force, an integral part of the European Union legal order. Moreover, according to the appendix to Annex II to that decision, in the field of independent living and social inclusion, work and employment, Directive 2000/78 is one of the European Union acts which refers to matters governed by the convention (judgments of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraphs 30 and 31, and of 1 December 2016, Daouidi, C‑395/15, EU:C:2016:917, paragraph 40).
40


It follows that the UN Convention may be relied on for the purposes of interpreting that directive, which must, as far as possible, be interpreted in a manner consistent with the convention (judgments of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph 32, and of 1 December 2016, Daouidi, C‑395/15, EU:C:2016:917, paragraph 41).
41


It is for that reason that, following the European Union’s approval of the UN Convention, the Court took the view that the concept of ‘disability’ within the meaning of Directive 2000/78 must 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 (judgments of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph 38, and of 18 January 2018, Ruiz Conejero, C‑270/16, EU:C:2018:17, paragraph 28).
42


It does not appear that Directive 2000/78 is intended to cover only disabilities that are congenital or result from accidents, to the exclusion of those caused by illness. It would run counter to the very aim of the directive, which is to implement equal treatment, to define its scope by reference to the origin of the disability (see, to that effect, judgment of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph 40).
43


The concept of ‘disability’ must be understood as referring to a hindrance to the exercise of professional activity, not to the impossibility of exercising such activity. The state of health of a person with a disability who is fit to work, albeit only part time, is thus capable of being covered by the concept of ‘disability’ (see, to that effect, judgment of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph 44).
44


The ‘long-term’ nature of the limitation must be assessed in relation to the condition of incapacity, as such, of the person concerned at the time of the alleged discriminatory act adopted against him (judgment of 1 December 2016, Daouidi, C‑395/15, EU:C:2016:917, paragraph 53 and the case-law cited).
45


The evidence which makes it possible to find that a limitation of capacity is ‘long term’ includes the fact that, at the time of the allegedly discriminatory act, the incapacity of the person concerned does not display a clearly defined prognosis as regards short-term progress or the fact that that incapacity is likely to be significantly prolonged before that person has recovered (judgment of 1 December 2016, Daouidi, C‑395/15, EU:C:2016:917, paragraph 56).
46


In addition, a finding that the person concerned has a ‘disability’, within the meaning of Article 1 of Directive 2000/78, comes before the determination and assessment of the appropriate accommodation measures referred to in Article 5 of that directive. According to recital 16 of that directive, such measures are intended to accommodate the needs of disabled persons and they are therefore the consequence of the finding that there is a ‘disability’ (see, to that effect, judgments of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraphs 45 and 46, and of 18 December 2014, FOA, C‑354/13, EU:C:2014:2463, paragraph 57).
57


In that regard, selection criteria such as productivity rate, level of multi-skilling in the undertaking’s posts and rate of absenteeism apply in the same way to disabled persons and to non-disabled persons. Accordingly, those criteria cannot be regarded as establishing a difference of treatment based directly on disability, within the meaning of Article 1 in conjunction with Article 2(2)(a) of Directive 2000/78, since they are not inseparably linked to disability (see, by analogy, judgments of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraphs 72 and 74, and of 19 September 2018, Bedi, C‑312/17, EU:C:2018:734, paragraph 48).
59


However, as regards more specifically the selection criterion relating to the rate of absenteeism, a disabled worker is, in principle, more exposed to the risk of having a high rate of absenteeism as compared to a worker without a disability, since he is exposed to the additional risk of being absent owing to an illness connected with his disability. It is thus apparent that the selection criterion consisting of having a high rate of absenteeism during the course of one year is liable to place disabled workers at a disadvantage, where the absence from work is connected with a disability, 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, judgments of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph 76, and of 18 January 2018, Ruiz Conejero, C‑270/16, EU:C:2018:17, paragraph 39).
61


Nevertheless, unfavourable treatment resulting indirectly from a disability undermines the protection provided for by Directive 2000/78 only in so far as it constitutes discrimination within the meaning of Article 2(1) of that directive (see, to that effect, judgments of 11 July 2006, Chacón Navas, C‑13/05, EU:C:2006:456, paragraph 48, and of 18 January 2018, Ruiz Conejero, C‑270/16, EU:C:2018:17, paragraph 36).
64


In that regard, the Court has held that the concept of ‘reasonable accommodation’ must be understood as referring to the elimination of the various barriers that hinder the full and effective participation of persons with disabilities in professional life on an equal basis with other workers (judgments of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph 54, and of 4 July 2013, Commission v Italy, C‑312/11, not published, EU:C:2013:446, paragraph 59).
71


If the referring court were to conclude that, prior to DW’s dismissal, DW’s employer did not take appropriate measures, referred to in paragraph 65 of this judgment, and that, therefore, it did not provide reasonable accommodation, within the meaning of Article 5 of Directive 2000/78, it must be held that, in a case such as that in the main proceedings, the dismissal of a disabled worker on the ground that he or she fulfilled selection criteria consisting of 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 Article 2(2)(b)(ii) of that directive (see, by analogy, judgment of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph 68).