Discrimination between and within a group of disabled employees
29/03/2021

In a judgment of 26 January 2021, the Court of Justice of the European Union ("CJEU") interpreted Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (hereinafter "the Directive"). The Directive is intended to ensure equal treatment in employment and occupation through a prohibition on direct and indirect discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and working conditions, including dismissals and pay.

The case brought before the CJEU concerned the grant of an allowance by a Polish employer to a group of employees who shared a common characteristic, namely they were all disabled, provided they submitted a disability certificate after a specific date chosen by the employer. This had the effect of denying the benefit of the allowance to disabled employees who had submitted a certificate before this date. The purpose of the allowance was to encourage disabled employees who had not yet submitted a disability certificate to do so, in order to reduce the employer's contributions to a state fund.

In addition, it turned out that most employees with more serious disabilities had submitted a disability certificate before the chosen date, due to the fact that their disabilities were visible or required reasonable adjustments to their working conditions. Consequently, many employees with more serious disabilities did not qualify for the allowance. 

This practice was challenged in court, claiming that it constituted prohibited discrimination on the ground of disability. 

The Polish court asked the CJEU for a preliminary ruling to determine whether a difference in treatment within a group of employees, defined with reference to a ground for protection set out in the Directive (i.e. disability), breaches the principle of equal treatment if those employees are not treated less favorably than employees who do not fall within this group (i.e. employees without a disability).

In practice, disability discrimination is often defined as the treatment of disabled persons less favorably than persons who are not disabled. 

The CJEU ruled, however, that the principle of equal treatment does not apply to a particular group of persons but rather with reference to the grounds exhaustively listed in the Directive (i.e. religion or belief, disability, age or sexual orientation). Accordingly, the Directive protects disabled persons against discrimination or unequal treatment compared to other disabled persons.

In summary, the CJEU held that a difference in treatment based on any of the grounds for protection listed in the Directive (including disability) occurring within a protected group of persons violates the principle of equal treatment in employment and occupation, as set out in the Directive. 

Therefore, when a new policy or measure is put in place, it is not sufficient to verify only whether the policy or measure discriminates against a protected group. It is also necessary to verify systematically whether it results in discrimination within a protected group. 

Voir aussi : NautaDutilh ( Mr. Philippe François ,  Ms. Alix de la Barre d'Erquelinnes )

[+ http://www.nautadutilh.com]

Mr. Philippe François Mr. Philippe François
Partner
[email protected]
Ms. Alix de la Barre d'Erquelinnes Ms. Alix de la Barre d'Erquelinnes
Associate
[email protected]

Tous les articles Droit du travail

Derniers articles Droit du travail

L’interdiction du port du foulard islamique ne serait pas discriminatoire selon la Cour de Just...
21/07/2021

Suite au jugement STIB rendu le 3 mai 2021 par le Tribunal du travail de Bruxelles condamnant La STIB à mettre un t...

Read more

Succession de contrats de travail à durée déterminée et de contrats de remplacement : la Cour...
20/07/2021

Le 17 juin 2021, la Cour constitutionnelle a prononcé un arrêt important dans lequel elle a jugé que l...

Succession de contrats de travail à durée déterminée et de contrats de remplacement : la Cour constitutionnelle statue sur la question Read more

ECtHR rules on social media-linked dismissal in Melike v. Turkey
17/07/2021

The European Court of Human Right’s ruling of 15 June 2021 concerned the dismissal of a contractual cleaning lady in...

ECtHR rules on social media-linked dismissal in Melike v. Turkey Read more

Returning to the workplace, Part 2 - when working from home comes at a price
16/07/2021

At the risk of kicking in an open door, working from home and the return to the office has become this summer’s...

Read more

Derniers articles de Mr. Philippe François

Rules applicable to strikes
25/02/2021

A national day of action is being organised by a coalition of labour unions today (25 February 2021) in Belgium.We would l...

Read more

Posted workers in the international road transport sector
04/02/2021

In a judgment of 1 December 2020, the Court of Justice of the European Union ("CJEU") interpreted Dire...

Read more

New CBA on mandatory or recommended teleworking in the context of Covid-19
03/02/2021

On 26 January, the National Labour Council signed a collective bargaining agreement concerning the terms and conditions fo...

Read more

Determination of the Reference Period for a Collective Redundancy
08/12/2020

In a judgment of 11 November 2020, the Court of Justice of the European Union (hereinafter, the "CJEU") interpre...

Read more

Derniers articles de Ms. Alix de la Barre d'Erquelinnes

Rules applicable to strikes
25/02/2021

A national day of action is being organised by a coalition of labour unions today (25 February 2021) in Belgium.We would l...

Read more

Posted workers in the international road transport sector
04/02/2021

In a judgment of 1 December 2020, the Court of Justice of the European Union ("CJEU") interpreted Dire...

Read more

New CBA on mandatory or recommended teleworking in the context of Covid-19
03/02/2021

On 26 January, the National Labour Council signed a collective bargaining agreement concerning the terms and conditions fo...

Read more

Determination of the Reference Period for a Collective Redundancy
08/12/2020

In a judgment of 11 November 2020, the Court of Justice of the European Union (hereinafter, the "CJEU") interpre...

Read more

LexGO Network