Carlos Enrique Ruiz Conejero v Ferroser Servicios Auxiliares SA and Ministerio Fiscal.
Date: 2018-01-18
28


According to the Court’s case-law, the concept of ‘disability’ within the meaning of Directive 2000/78 has to 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 (judgment of 9 March 2017, Milkova, C‑406/15, EU:C:2017:198, paragraph 36 and the case-law cited).
29


In that regard, in the event that, in given circumstances, the obesity of the worker concerned entails a limitation of capacity such as that referred to in the preceding paragraph of this judgment, such a state is covered by the concept of ‘disability’ within the meaning of Directive 2000/78 (see to that effect, judgment of 18 December 2014, FOA, C‑354/13, EU:C:2014:2463, paragraph 59).
30


Such would be the case, in particular, if the obesity of the worker concerned hindered his full and effective participation in professional life on an equal basis with other workers on account of reduced mobility or the onset, in that person, of medical conditions preventing him carrying out his work or causing discomfort when carrying out his professional activity (judgment of 18 December 2014, FOA, C‑354/13, EU:C:2014:2463, paragraph 60).
36


It should be noted that unfavourable treatment on grounds of disability does not run counter to the protection provided for by Directive 2000/78 unless it constitutes discrimination within the meaning of Article 2(1) of that directive. A worker with a disability covered by that directive must be protected against all discrimination in relation to a worker not so covered. The question thus arises whether the national legislation at issue in the main proceedings is liable to produce discrimination against persons with disabilities (see, to that effect, judgment of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph 71).
37


In that regard, Article 52(d) of the Workers’ Statute applies in the same way to persons with disabilities as to persons without disabilities who have been absent from work. In those circumstances, it cannot be held that that provision establishes a difference of treatment directly based on disability, within the meaning of the combined provisions of Article 1 and Article 2(2)(a) of Directive 2000/78, since it uses a criterion that is not inseparably linked to disability (see, to that effect, judgments of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraphs 72 and 74, and of 9 March 2017, Milkova, C‑406/15, EU:C:2017:198, paragraph 42).
38


On the question whether Article 52(d) of the Workers’ Statute is liable to entail a difference of treatment indirectly based on disability, it must be observed that taking account of days of absence because of illness linked to disability in the calculation of days of absence because of illness amounts to assimilating illness linked with disability to the general concept of illness. However, as stated by the Court in paragraph 44 of the judgment of 11 July 2006, Chacón Navas (C‑13/05, EU:C:2006:456), the concepts of ‘disability’ and ‘sickness’ cannot simply be treated as being the same (see, to that effect, judgment of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph 75).
39


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).
43


It should be recalled that the Member States have broad discretion not only in choosing to pursue a particular aim in the field of social and employment policy but also in defining measures to implement it (judgment of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph 81 and the case-law cited).
44


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).
48


It is also for the referring court to ascertain whether, by providing the right to dismiss workers intermittently absent because of illness for a particular number of days, Article 52(d) of the Workers’ Statute has the effect, for employers, of encouraging recruitment and maintenance in employment (see, to that effect, judgment of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph 88).
49


Second, in order to examine whether the measures provided for in Article 52(d) of the Workers’ Statute go beyond what is necessary to achieve the aim pursued, that provision must be placed in its context and the adverse effects it is liable to cause for the persons concerned must be considered (see, to that effect, judgment of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph 89 and the case-law cited).
50


For that purpose, it is for the referring court to examine whether the Spanish legislature omitted to take account of relevant factors relating, in particular, to workers with disabilities (see, to that effect, judgment of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph 90).
51


In assessing whether the measures provided for by Article 52(d) of the Workers’ Statute are proportionate, the risks run by persons with disabilities, who generally face greater difficulties than persons without disabilities in re-entering the labour market, and have specific needs in connection with the protection their condition requires, should not be overlooked (see, to that effect, judgment of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph 91).