In the light of the United Nations Convention on the Rights of Persons with Disabilities, concluded in New York on 13 December 2006 and approved on behalf of the European Community by Council Decision 2010/48/EC of 26 November 2009 and Directive 2000/78/EC of 27 November 2000, member states have to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity: the aforementioned principle of equal treatment aims to avoid direct or indirect discrimination.
• The DIRECT DISCRIMINATION occurs when one person is treated less favourably than another is, has been or would be treated in a comparable situation;
• the INDIRECT DISCRIMINATION occurs when an apparently neutral provision, criterion or practice would put persons having particular conditions at a particular disadvantage compared with other persons.
The case
Recently, the CJUE was called upon to rule on a very sensitive case: a woman worked for a company, established in Italy, as a ‘station operator’, role that requires monitoring and supervising an underground station.
The worker repeatedly asked to the company to appoint her permanently to a position with fixed working hours, to enable her to care for her minor child with extensive and comprehensive needs arising from disability, within the framework of Caregiver Discrimination Employment considerations.
The company, without fully accepting the woman’s requests, provided the worker with some accommodation in respect of her working conditions on a provisional basis, which comprised assigning her a fixed workplace and a preferential working schedule as compared to other station operators.
The first legal action
The worker brought an action before the District Court of Rome, claiming that the employer’s refusal was discriminatory. However, the District Court – like, subsequently, the Court of Appeal of Rome – dismissed the action finding that the employer had provided ‘reasonable accommodation’ to take into account the constraints of the appellant, even though those measures were provisional.
A request for clarification
The Supreme Court of Cassation, called to rule in the last degree of judgment following the suspension of the proceedings, with a preliminary reference asked the CJUE for a clarification regarding the correct way to interpret the European Union law. The question was: “A family caregiver of a severely disabled child claims to have suffered indirect discrimination in an employment context, as a result of the care provided by that individual. Given all this, is such person entitled to rely on the anti-discrimination protection that would be afforded to that disabled person, if they were the worker, by Directive 2000/78?”.
Details of the Directive 2000/78
The Court clarified that the prohibition of direct discrimination on grounds of disability laid down in Directive 2000/78 is not limited solely to persons who themselves have a disability, within the scope of Workplace Accommodation Rights.
In fact, the Directive considers when an employer treats an employee (who does not himself or herself have a disability less favourably than another employee is, has been or would be treated in a comparable situation). In this case, it is established that the less favourable treatment of that employee is based on the disability of his or her child, whose care is provided primarily by that employee: so, such treatment is contrary to the prohibition of direct discrimination.
In fact, according to the Court, the equal treatment principle must be interpreted in a non-restrictive sense, ensuring therefore a broad application of the fundamental guarantee.
The Court ruling
Based on the above, in acceptance of the appeal proposed by the worker, the Court declared that “Council Directive 2000/78/EC […] must be interpreted as meaning that the prohibition of indirect discrimination on grounds of disability applies to an employee who does not himself or herself have a disability but who is subject to such discrimination because of the assistance that that person provides to his or her child who has a disability, which enables that child to receive the primary care required by virtue of his or her condition”.
The Court specified that the employer has the duty to 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.
Thus, the employer must also guarantee the same measures to the caregiver worker. The CJEU underlined that a reduction of working time or reassignment to another job may constitute reasonable accommodation.
To prevent any type of discrimination
In order to prevent any type of discrimination, whether direct or indirect, the employer must ensure that the working environment is adapted to the person with a disability so as to enable him or her to participate fully and effectively in professional life on an equal basis with other workers.
Where the employee does not him- or herself have a disability but cares for a child who has a disability, those measures must also enable his or her working environment to be adapted to the same end.
Clearly, the assessment of the employer’s conduct will be up to the judge, who, by verifying the circumstances of the specific case, will have to determine whether the employer has done everything possible to apply the principle of equal treatment to all types of workers.
