06 January 2017 #Employment
The Spanish courts recently asked the European Court of Justice for guidance on whether an employee with a dislocated elbow could be classed as disabled, even though his injury was only temporary. Although this case was brought in the Spanish courts, the European Court’s decision is equally relevant to us here in the UK as our disability discrimination law is governed by the same overarching principles contained in the European Equal Treatment Directive.
The case was brought by Mr Daouidi. He worked in a restaurant and dislocated his elbow after having an accident at work, which meant he was unable to work. He couldn’t tell his employer when he was likely to be able to return to work, so the restaurant terminated his employment 6 weeks after the accident.
Mr Daouidi brought a disability discrimination claim, which was heard in the Spanish courts 6 months later. At that point, Mr Daouidi still had a plaster cast on his arm. The Spanish courts had to decide whether his injury would be classified as ‘long-term’, meaning he would be covered by the disability legislation. The Spanish court asked the European Court for guidance on whether Mr Daouidi would be classified as disabled under the Equal Treatment Directive, given the uncertain duration of his injury.
The European Court said that a temporary injury lasting for an indeterminate amount of time would not automatically be considered ‘long term’, it would depend on the circumstances. If the evidence in a particular case was that the injury did not have a defined short-term prognosis, or if incapacity was likely to be significantly prolonged before recovery, something like a dislocated elbow might amount to a disability.
Although the European Court stressed that any decision about whether or not someone is disabled would be an objective one, to be made by national courts based on the facts of each case, this decision is reminder to all employers that even a temporary injury might be protected under disability discrimination law. In the UK, the Equality Act says that a person is disabled if they have an impairment which has lasted, or is likely to last, for 12 months. Employers need to keep an open dialogue with employees who are off sick in order to understand the nature and prognosis of their incapacity, and should take legal advice if there is any doubt over whether disability discrimination law applies.
At Clarkslegal our employment team regularly help employers dealing with tricky absence cases – taking legal advice at the time can avoid costly claims arising in the future.