Vice-President R Silva de Lapuerta,
Presidents of Chambers A Prechal, M Vilaras, E Regan, M Ilešič,
Judges E Juhász, T von Danwitz (Rapporteur), S Rodin, F Biltgen, K Jürimäe, C Lycourgos, N Jääskinen
Advocate General G Pitruzzella
The disabled employee worked in a Polish hospital. Pursuant to Polish law, a disabled worker enjoyed certain rights as part of the “community of persons with disabilities in the workforce” from the date on which the worker submitted a disability certificate to the employer. The employee was denied a supplementary payment paid by her employer to other disabled workers for the sole reason that she had submitted her disability certificate on a date prior to a meeting between staff and management. At that meeting, in order to bring about an increase in the number of disabled workers employed, so as to obtain a reduction in its contribution to a national disability fund, the employer had promised the supplementary payment only to workers who produced a disability certificate after the date of the meeting. On the basis of that decision, the allowance was granted to 13 workers who had submitted their certificates after that meeting, but denied to 16 workers, including the employee, who had submitted their certificates before that meeting. The employee’s action for payment of the allowance and compensation for the harm suffered as a result of discrimination was dismissed on the ground, inter alia, that the employer had not treated the employee differently on account of her disability, inasmuch as such different treatment presupposed a comparison with employees who had no disability. On the employee’s appeal, the Polish court stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling the question whether the practice adopted by the employer was covered by the “concept of discrimination” referred to in article 2 of Council Directive 2000/78/EC, in particular whether the prohibition against direct or indirect discrimination applied to the practice of an employer who treated two groups of disabled workers differently on the basis of an apparently neutral criterion, in the present case, the date of submission of a disability certificate.
On the reference—
Held, the principle of equal treatment under Council Directive 2000/78/EC protected disabled workers against any discrimination on the basis of that disability, not only compared with non-disabled workers but also compared with other disabled workers. Where an employer treated a worker less favourably than another worker and that unfavourable treatment was based on a criterion which was inextricably linked to a worker’s disability, such treatment was prohibited direct discrimination within the meaning of article 2(2)(a) of the Directive. It was for the referring court in the present case to determine whether the temporal condition imposed by the employer for receiving the allowance, namely the submission of the disability certificate after a date chosen by that employer, constituted such a criterion and would, therefore, lead to a finding of direct discrimination on the grounds of that disability within article 2(2)(a). One indicia which was particularly significant for that assessment was the fact that, according to Polish legislation, the disability certificate gave rise to specific rights which could be relied on by the worker against the employer, which directly derived from that worker’s status as a disabled worker. By failing to provide disabled workers who had already submitted their certificates with the opportunity of resubmitting or filing new ones, the employer made it impossible for a clearly identified group of workers, whose status was necessarily known to the employer, to satisfy the temporal condition imposed by the employer. Further, in order to find indirect discrimination, within the meaning of article 2(2)(b) of the Directive, based on a difference in treatment stemming from an apparently neutral practice by reference to criteria unrelated to the protected characteristic, namely the date on which the disability certificate was submitted, the referring court had to ascertain whether that difference had the effect of placing persons who had certain disabilities at a disadvantage compared with persons who had other disabilities. In particular, the court had to investigate whether the employer’s practice had the effect of putting certain workers with disabilities at a disadvantage because of the particular nature of their disabilities, including whether such disabilities were visible or required reasonable adjustments to be made, such as adapted workstations or working hours. Subject to verification by the referring court, it was possible that it was, primarily, workers who had such disabilities who had to make their state of health formally known to their employer, by submitting disability certificates before the date chosen by the employer, whereas other workers with disabilities of a different nature who did not immediately require reasonable adjustments to be made, still had a choice as to whether or not to take that step. Although, pursuant to article 2(2)(b)(i), a difference in treatment leading to a particular disadvantage for persons with disabilities which were visible or which required reasonable adjustments did not constitute indirect discrimination where it was objectively justified by a legitimate aim and the means of achieving that aim were appropriate and necessary, it seemed from the intended purpose of the practice in issue, namely to save money, that the conditions for such justification were not satisfied in the present case, subject to verification by the referring court (judgment, paras 36, 48, 51–53, 55–60, operative part).
M Podskalna and AM Niżankowska-Horodecka for the employee.
A Salamon for the employer.
B Majczyna, A Siwek-Ślusarek and D Lutostańska, agents, for the Polish Government.
A Pimenta, MJ Marques and P Barros da Costa, agents, for the Portuguese Government.
A Szmytkowska and C Valero, agents, for the European Commission.