Disability discrimination cases experienced an exponential growth in recent years due to the the Court of Justice of the EU (“the Court”)’s relevant role on its protection. In this regard, the Court in  Ring and Skouboe Wergen has drawn a line of expansion of the disability concept that aims to increase the effectiveness and protection of people with disabilities by maintaining them in employment. The Court’s last chapter on this trend has been its judgment of 18 January 2024, J.M.A.R. v Ca Na Negreta SA, which highlights the Spanish failure to adapt the termination of employment of people with disabilities to the requirements of non-discrimination of persons with disabilities.

 In fact, this problem is not entirely new, and can already be seen in a case  of 18 January 2018, Ruiz Conejero. These two rulings stand out the incorrect adaptation of the UN Convention on the Rights of Persons with Disabilities (CRPD) to the Spanish legal system concerning employment extinctions of people with disabilities.

The Spanish situation is linked to the disability characterization expansion as a result of art. 2 CRPD. The international standard incorporates a disability concept which connects long-term physical, mental, intellectual or sensory impairments with social barriers. So, the shift  from  the previous model based on an entirely medical concept to a social concept which focuses on accessibility and accommodation has meant an increase of situations that can lead to discrimination on grounds of disability. In fact, the Court has appreciated that the social concept of disability requires an extra effort to achieve full employment of people with disabilities, and in particular it has to be focused on preventing the termination of employment contracts.

Employment extinctions: reasonable accommodation

In Ca Na Negreta, it points out the need to keep improving employers’ extinction faculties and disability protection. Spain has allowed to automatically terminate  employment contracts due to the official recognition of a work invalidity (Incapacidad Permanente) since 1979, which the Court found does not comply with the prohibition of disability-based discrimination in the Employment Equality Directive. The duty to provide reasonable accommodation plays a very important role in this discussion, which the Spanish legislator has not integrated  in practically any termination modality to date. The Court emphasized the purpose to maintain the employment as a priority to eliminate disability discrimination, given that the CRPD focus is to achieve equal opportunities by enabling him or her to participate fully and effectively in professional life on an equal basis with other workers, through reasonable accommodations (see, to that effect HR Rail, para. 41 and 43). In particular, Spanish legislation allowed an automatic extinction without fulfilling the duty to provide reasonable accommodation, and it is precisely this omission that the Court considers to be a key argument, as CRPD states that disability discrimination includes also denial of reasonable accommodation (para. 42 Ca Na Negreta and art. 2 CRPD).

Therefore the Court provides a clear statement that is in line with the strong protective character it has shown over the last few years, holding that reasonable accommodation is a duty that has to be always fulfilled as a control prior to terminations affecting people with disabilities.

This is crucial to ensure effective protection against discrimination on grounds of disability. And although this has been pointed out on different occasions by scientific doctrine/legal scholarship, Spanish case law, with some exceptions, has not fully integrated the importance of this corporate duty. Thus, for example, the procedure for Spanish objective terminations due to economic or production reasons should change to include the obligation to make reasonable adjustments beforehand.

New challenges on disability discrimination: Disproportionate burden

However, from a broader perspective, there is another issue regarding the duty to provide reasonable accommodation that has been little explored even by the Court. Reasonable accommodation has to be offered unless this would constitute a “disproportionate burden”. The latter is a concept on which the Court has not yet had the opportunity to rule, and Ca Na Negreta was a good opportunity to address this issue. So, for example, the social security benefit resulting from the recognition of the situation of permanent incapacity could be assessed as an element of the excessive burden. In more detail, the social security benefit is recognized in situations of limited capacity to work, and the amount of the benefit recognized can be a crucial circumstance in determining whether the worker has a need to continue to provide services.

In conclusion, the Employment Equality Directive is now 25 years old and protection against the dismissal of people with disabilities has been an issue that gained prominence over the years. In fact, it has  triggered national challenges, especially from a Spanish perspective, which, thanks to the protective will of the Court, has led to building stronger legal systems protecting the employment of people with disabilities and ensuring the fulfillment of the duty to provide reasonable accommodation. However, outstanding issues, like the definition of disproportionate burden, still remain as a challenge to achieve full employment of people with disabilities.