The applicant in this case, Ms H.H., had been committed to a psychiatric unit for involuntary treatment and administered medication without her consent. The Finnish courts refused to grant her an oral hearing in proceedings where she was appealing her committal decisions. This, it was reasoned, was justified on the basis that an oral hearing had been held in relation to one of her previous committal decisions two years earlier, and it was therefore unnecessary to hold another.

The Court concluded that there had been a violation of Ms H.H.’s right to liberty under Article 5 § 4 ECHR. It held that the principle of procedural fairness required that she be heard again because she had last been heard two years previously, and this had been in separate proceedings (para 35). Yet, the judgment reveals the lower level of rights protection to which disabled people are entitled under the ECHR. In reaching its decision, the Court highlighted its position that ‘persons of unsound mind’ are an exception to the rule that ‘[n]o one shall be deprived of his liberty’ under Article 5 § 1 ECHR (para 29). This, however, is contrary to Article 14 CRPD which holds that ‘the existence of a disability shall in no case justify a deprivation of liberty.’

The Court reiterated its caselaw concerning the procedural rights of ‘persons of unsound mind’ deprived of their liberty, including that these proceedings ‘need not always be attended by the same guarantees as those required under Article 6 § 1 for civil or criminal litigation’ (Stanev v. Bulgaria, para 171). For example, the Court identified that where an administrative court has up-to-date medical reports, and the applicant has access to the relevant material and is able to put forward their point of view, there may be no violation of the ECHR, as in the case of Derungs v. Switzerland (para 31).

The standards of the CRPD were not cited as relevant international material, despite the fact that the Court has done so in similar cases in the past (e.g., Plesó v. Hungary, para 37). The Court highlighted its own caselaw rather than the standards under the CRPD, for example that ‘mental health laws that permit forced treatment…must be abolished in order to ensure that full legal capacity is restored to persons with disabilities on an equal basis with others’ (General Comment No. 1, para 7). This demonstrates that, almost twenty years after the adoption of the CRPD by the UN General Assembly, the Court’s integration of its norms continues to be sporadic.

Moreover, Finland is party to both the ECHR and the CRPD. The CRPD Committee noted with concern in September 2025 that Finland lacks ‘measures to repeal laws and legal provisions allowing the involuntary detention of persons with disabilities on the basis of impairment’ (para 26). Finland is therefore not meeting the higher standards of rights protection provided by the CRPD, and it appears that it will not be under pressure to do so by the Court.

In the future, the Court could choose to promote the enforcement of CRPD standards in countries like Finland by citing the CRPD as relevant international material and integrating CRPD standards into its reasoning. Until then, the Court diverges from dominant disability rights perspectives by failing to promote the treatment of disabled people on an equal basis with others.

Definitions in international human rights law

To establish any definition in international human rights law, we would first go to treaty texts. And, indeed, some important human rights concepts are defined in these. For example, Article 1 of the Convention on the Rights of the Child (CRC) defines a child. Any reference to this definition would say, ‘Under the CRC, a child is defined as anyone under the age of 18’.

UN human rights treaty bodies in their general comments or case law can also provide definitions, so can UN General Assembly declarations. For example, the Committee on the Elimination of Discrimination against Women defined ‘violence against women’ in its General Recommendation 19 and ‘gender-based violence against women’ in its General Recommendation 35. The definitions provided by the UN human rights treaty bodies are not expressly binding, but they are generally treated as authoritative interpretations of terms found in the treaties because they are provided by organs that have the mandate to interpret and apply these treaties. Even then, international human rights lawyers would say, ‘The CEDAW Committee in its General Comment 35 defines gender-based violence against women as…’.

Others can, of course, also come up with definitions. These definitions, however, can only be attributed to the authors.  For example, the UN Special Rapporteur on the Human Rights of Migrants provided a helpful definition of ‘pushbacks‘. This has been subsequently cited and used by many others, see here, here and here – but as his definition.

There is no definition of a ‘mother’ in international human rights law

Not one international human rights treaty defines a mother.

The “Women’s Constitution”, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), does not even mention the word ‘mother’. Neither does the latest thematic treaty, the Convention on the Rights of Persons with Disabilities (CRPD). Article 16 of the CEDAW explicitly protects women’s equal right to the guardianship, wardship, trusteeship and adoption of children, clearly showing that it does not tie motherhood to giving birth to a child.

The only UN human rights treaty that mentions mothers is the International Covenant on Economic, Social and Cultural Rights (ICESCR) under Article 10(2). This provision states that ‘special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits.’

The provision obviously does not define a mother. Nor does it exclude mothers who have not given birth to their children.

So, where, in international human rights law, does this definition on the UN website come from?

One document offers the identical definition. This was provided by the same UN Special Rapporteur on Violence against Women herself in her own report to the UN Human Rights Council from July 2025.  This report then makes a reference to another report issued by the same rapporteur, already the subject of criticism on this Blog, as well as to Article 10(2) of the ICESCR.

Gender-based violence against women has been a burning issue across time and space. Its recognition has been a generational fight under international human rights law. Violence against mothers, and how harmful gender stereotypes about ‘real’ ‘or ‘good mothers’, exacerbate such violence and is fully worthy of a UN study.

None of this work, however, can take place by allowing a glaringly legally incorrect definition of a mother on the UN human rights website. This definition from nowhere serves only to exclude some mothers from its scope.

Facts and relevance

Bervidi concerned a parent, G.L., who was a caregiver for her minor child ‘with extensive and comprehensive needs arising from disability’ (para 20). She had asked her employer for a permanent appointment with fixed working hours which would enable her to meet her child’s care needs, which included a programme at a fixed time in the afternoon. An Italian court considering the case asked the Court of Justice whether the prohibition of indirect discrimination (art. 2.2.b) and the provisions on reasonable accommodation (art. 2.2.b and 5) in the Employment Equality Directive applied to G.L., herself not a person with a disability.

The Court of Justice had already found that the prohibition of discrimination applies when the alleged discrimination occurs on the basis of disability, regardless of whether the alleged victim is themselves a person with a disability (i.e., discrimination by association). In Coleman, it had held that the protection against direct discrimination and harassment apply to the parent of a child with a disability when the discrimination is based on her child’s disability. In the CHEZ case, interpreting the Race Equality Directive, the Court had considered that indirect discrimination by association was prohibited under that Directive. However, the Coleman judgment indicated that reasonable accommodation was confined to persons with a disability (at para 39).

Scholars such as Lisa Waddington and Andrea Broderick had criticised the decision for not complying with the requirements of the CRPD. The CRPD Committee had considered all forms of discrimination by association to be prohibited by the CRPD (e.g., in its General Comment on equality and non-discrimination, para 17; and in its decision in Bellini v. Italy). Moreover, in reaching this conclusion, the Court of Justice overlooked the vital role of reasonable accommodations in families where someone has a disability, regardless of which person in the family they are provided to.

The judgment

The Court in Bervidi, firstly, indicated that the Employment Equality Directive should be read in light of the CRPD, including its Article 7 on the rights of children with disabilities, and Articles 24 and 26 of the Charter of Fundamental Rights of the EU on the rights of the child and of persons with disabilities. Reaffirming its prior decision in CHEZ, the Court confirmed that indirect discrimination by association based on disability is prohibited (para 40-66). Referring to the rights of children and persons with disabilities, case law from the European Court of Human Rights, and the views of the CRPD Committee, it concluded that this prohibition applies to employees discriminated against because of their assistance in their child (with a disability)’s access to the required care.

Concerning reasonable accommodation, the Court’s reliance on those same sources led it to consider that ‘the employee must be able to provide, to his or her child who has a disability, the assistance that that child requires, which implies an obligation, on the employer, to adapt the working conditions of that employee’ (para 73). The Court explained its seeming change in position by indicating that this question had not been presented in Coleman and that the Charter and CRPD at that time were not yet binding for the EU (para 69-70). Interestingly, it also considered this finding necessary for the effectiveness of the prohibition of indirect discrimination by association (para. 74; see also this author’s previous post on the connection between reasonable accommodation and indirect discrimination in this respect).

A welcome clarification

In Bervidi, the Court further consolidates the effective protection against discrimination based on disability. On indirect discrimination, the judgment reaffirms its prior case law. By centring the CRPD and the rights of children with disabilities in its analysis, the Court was led to the application of reasonable accommodation by association, simultaneously recognizing the interaction between care obligations and work. This provides both a welcome further alignment with the CRPD and the CRPD Committee’s practice, and a more accurate reflection of the interaction between caring obligations in private life and equal access to the workplace (see, by contrast, case C-363/12). This contextualised view of the worker can also be seen in cases concerning sex equality, such as Maïstrellis (para 45) and is prominently present in the Work Life Balance Directive referred to by the Advocate General in his opinion (para 47). Accordingly, the judgment leads to a logical and welcome clarification within EU anti-discrimination law.

 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.

Facts and central question

The Court addressed a preliminary question by the German Federal Labour Court regarding AP Assistenzprofis’ rejection of Ms J.M.P., who had applied for a job as the personal assistant of a disabled young woman. The refusal was based on the fact that Ms J.M.P.’s age was not within the preferred age range of 18 to 30 years. The German judge wanted to hear from the CJEU to what extent the Employment Equality Directive allows for justifying such direct age-based discrimination.

While the Employment Equality Directive has primarily been discussed in this series for its prohibition of disability-based discrimination, this case takes a different turn. Here, a person with a disability applies age-based criteria when hiring a personal assistant, using their disability as justification.  Since the EU and its Member States are parties to the CRPD, the key question is how the prohibition of discrimination under the Employment Equality Directive aligns with the CRPD’s right to freely choose an assistant.

Allowed if necessary

The Court followed the Advocate General (AG)’s approach and did not tap into what was perhaps the expected approach of the ‘genuine and determining occupational requirements’ (Art. 4(1) Employment Equality Directive). Instead, both argued that the case ought to be tested under Article 2(5) of the Directive, allowing “measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.” The German law tested against this provision states that services intended to promote participation in society must respect a person’s legitimate wishes, including personal circumstances, age, sex, family and religious and philosophical needs.

The Court concluded “that Article 2(5) of the Employment Equality Directive, read in the light of Article 26 of the Charter [of Fundamental Rights of the EU] and Article 19 of the [CRPD], must be interpreted as not precluding the recruitment of a person providing personal assistance from being subject to an age requirement pursuant to national legislation under which account is to be taken of the individual wishes of persons who are entitled to personal assistance services as a result of their disability, if such a measure is necessary for the protection of the rights and freedoms of others” (para 68). However, the Court leaves it to the national judge to verify, having regard to all the facts of the main proceedings, whether the result of the measure is necessary (para 66). Given direct age-based discrimination, the German judge must balance the applicant’s right to protection from age discrimination and the disabled person’s right to protection from disability discrimination.

But appropriate?

The Court is mild for (directly discriminatory) preferences of persons with disabilities, in particular in comparison to other cases where the preferences of, for example, clientele were approached with a much higher level of scrutiny (Feryn). This is in line with the position of the CRPD Committee, which has repeatedly emphasised that personal assistance services should be gender-, age-, and culturally appropriate (CRPD, Second and Third Concluding Observation on Peru, §39; CRPD, Concluding Observation on Mexico, para 44) and that free choice is essential (CRPD General Comment 5, 16(d)). After all, a personal assistant becomes part of the person’s life and interacts with its most intimate aspects. However, the question remains whether allowing direct discrimination is appropriate to reconcile the right to independent living with anti-discrimination law. Empathy with age might also meet gender-, age-, and cultural appropriateness without introducing new forms of discrimination.

Facts and central question

 The complainant was a trainee working as a technician on the Belgian railways. After one year, he was diagnosed with a heart condition and this required the fitting of a pacemaker. The railway tracks contained electromagnetic fields, but the pacemaker was incompatible with repeated exposure to such fields. Consequently, the company’s medical centre confirmed that he was unfit to continue in his existing position. The complainant was temporarily reassigned to the role of warehouseman, but he was dismissed after three months. According to the company’s staff rules, reassignment in the event of disability was only available to permanent members of staff and not to trainees.

Was this compatible with the company’s duty to provide reasonable accommodation for employees with disabilities? The Belgian Conseil d’État referred this question to the Court for an interpretation of Article 5 of the Employment Equality Directive. This states that “employers shall 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.” This does not provide a clear indication as to whether ‘appropriate measures’ should encompass reassignment to a different job.

(Extent of) reassignment as reasonable accommodation

Advocate-General (AG) Rantos advised the Court that ‘appropriate measures’ should be interpreted as including reassignment to another position. Taking a purposive approach, he argued that reasonable accommodation was a/the “legal translation of the social concept of disability” and “the means to achieve substantive equality in a concrete and individualised situation of discrimination” (para 84). Drawing inspiration from the UN Convention on the Rights of Persons with Disabilities (CRPD) and the EU Charter of Fundamental Rights, he contended that “people with disabilities should be kept in employment rather than being dismissed for unfitness, which should only be a last resort” (para 68). The Court’s judgment followed his reasoning. In particular, it drew attention to recital 20. This states: “appropriate measures should be provided, i.e. effective and practical measures to adapt the workplace to the disability” In the view of the Court, adaptation of the ‘workplace’ extended/extends to reassignment to another position therein (para 41).

HR Rail is a very significant decision because it confirms that employers should consider reassignment to another position, even in respect of non-permanent trainees. This interpretation of the Directive was not a foregone conclusion. For example, in 2019, the Irish Supreme Court held that appropriate measures did not extend to reassignment to “an entirely different job” (MacMenamin J, para106). Nevertheless, the possibility for reassignment remains contingent upon this not giving rise to a ‘disproportionate burden’ for the employer. The Court indicates that this will depend upon an assessment of the factual situation, which is a function performed by the national court (para 46). It observes, however, that the possibility of reassignment is “only available where there is at least one vacancy that the worker in question is capable of holding” (para 48). AG Rantos was more expansive on this issue. He advised that reassignment was subject to the complainant being “competent, capable and available to perform the essential functions of the new post” (para 74), and that this could not result in another worker being forced to “swap jobs” (para 77).

HR Rail confirms that employers have to explore the possibility of reassignment if an employee cannot continue in their existing position and suitable internal vacancies exist elsewhere in the organization. While this is consistent with the rationale of the CRPD, there is the potential for this to disrupt workplace norms about how internal vacancies are filled. Such opportunities may be sought after by other employees, eg because they offer a favourable schedule or working conditions. Consequently, challenges may arise when employers seek to balance their accommodation duties with wider issues of human resource management or industrial relations. For large organizations, this makes it advisable to put in place clear procedures for handling reassignment as a type of reasonable accommodation.

Facts and central question

The case involved XX, a prison officer at the Estonian Tartu Prison for nearly 15 years, who was dismissed in June 2017 due to a medical certificate indicating his hearing did not meet the standards set by Regulation No. 12. This regulation mandates minimum hearing standards without corrective aids for prison officers. XX, who had a lifelong hearing impairment, claimed his dismissal was discriminatory and violated the Estonian Constitution and equal treatment laws.

The case escalated to the Estonian Supreme Court, which asked whether the Employment Equality Directive precludes national legislation that outright bans individuals from becoming prison officers if they do not meet auditory acuity requirements and prohibits the use of hearing aids to meet these standards (para. 24).

Direct distinction with a legitimate aim

The Court found that Regulation No. 12 constituted a direct distinction based on disability (para. 30). It then examined whether this difference in treatment could be justified under Article 4(1) of the Directive, which allows for such differences if they are genuine and determining occupational requirements, provided they pass a proportionality test/the objective is legitimate and the requirement is proportionate (para. 41). The Court noted that the requirement for prison officers to meet minimum hearing standards is related to the nature of their duties and the context in which they are performed (para. 41). It aims to preserve safety and public order, making it a legitimate objective (para. 42). The Court then assessed whether the requirement was appropriate and did not exceed what was necessary to achieve these objectives.

The Court noted that legislation is suitable for achieving its objective only if it consistently reflects a genuine concern to do so. It identified an inconsistency in the application of the Regulation, allowing corrective devices for visual acuity but not for hearing acuity (para. 45). However, the Court failed to explore whether the procedures underpinning Regulation No 12 were suitable to fulfil its objective based on the reading of the Directive in light of the requirements of the CRPD (Articles 5 and 27).  This approach would have provided a systemic review of occupational assessments and their compatibility with the requirements of the CRPD.

Necessity and Reasonable Accommodation

Instead, the Court moved to the necessity assessment, concluding that Articles 2(2)(a), 4(1), and 5 of Directive 2000/78 preclude national legislation that imposes an absolute bar on a prison officer’s employment if their hearing acuity does not meet the prescribed minimum standards. This conclusion is reached without assessing whether the officer can fulfil those duties, where appropriate, after adopting reasonable accommodation measures as defined in Article 5 (para 53).

The importance the Court placed on the individual assessment of persons’ ability to perform the essential duties of a job before dismissal, shows the gaps of the Estonian Regulation. Nevertheless, the fact that this argument of the Court was developed as part of the necessity assessment of the measure, could imply that the Court views this issue as a component of the reasonable accommodation duty and not as a necessary component of the medical assessment process of  Regulation No 12 specifically. The Court confirmed this interpretation in TC & UB v. Komisia za zashtita ot diskriminatsia.

(Not) an inclusive employment system

This view of the individual assessment is more restrictive than the approach taken by the CRPD Committee. The Committee has reiterated [J.M.V.A. v. Spain] that, while reasonable accommodation is an ex nunc duty, States parties must take all necessary preventive measures to enable public authorities to manage capacities effectively, thereby optimising the exercise of rights for persons with disabilities. In other words, State Parties should adopt proactive measures, including capacity assessment procedures, to build the capacities of their employees who have acquired a disability and to not rely on the reactive duty of reasonable accommodation as exception to systems that are not inclusive to the needs of persons with disabilities.

It will be interesting to see whether the Court will adopt this bolder interpretive approach in future cases, aligning more closely with the proactive and preventive measures advocated by the CRPD Committee.

In 2000, the EU adopted Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, giving effect to its then recently introduced mandate to combat discrimination based on racial or ethnic origin, religion or belief, disability, age and sexual orientation, next to the existing framework for sex and racial or ethnic origin. The Directive entered into force on 2 December 2000, prohibiting different forms of discrimination based on these characteristics. For people with disabilities specifically, it also enshrined the right to reasonable accommodation (Article 5) and the possibility for member states to take measures “for safeguarding or promoting their integration into the working environment” (Article 7.2). The Directive did not provide a definition of disability, leaving open who would be eligible for its protection, a common and long-standing question where disability and the law interact.

A narrow definition…

In a widely criticized decision in 2006 (Chacón Navas), the Court answered this question  narrowly where the Directive was concerned: a disability was “a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life.” (para 43) and which is probable to last for a long time (para 44). An employee who had been dismissed after a period of illness-related absence had invoked the Directive. The Court distinguished situations of sickness from situations of disability, indicating that the protection based on disability does not start to apply “as soon as [employees] develop any type of sickness” (para 46). The Court’s definition emphasized the impairment of the individual as being the cause of disadvantage (rather than society’s interaction with the impairment) and highlighted a need for claimants to be “disabled enough”. It accordingly affirmed a medical model of disability. The UN Convention on the Rights of Persons with Disabilities, which was negotiated around the same time and with the involvement of the EU, precisely chose to move away from this model and emphasize the interaction between impairments and society (Article 1), adopting a human rights model of disability.

…evolving to a broader scope of protection

However, the next years of case law reflected a broadening scope of protection. In the Coleman case (2008) the Court clarified that the protection applies for any discrimination based on disability, regardless of whether the person discriminated against is a person with a disability (paras 48-51). Carers of persons with disabilities or people otherwise associated with persons with disabilities therefore also (mostly, see para 39) qualified for the Directive’s protection. In the Ring and Skouboe Werge case (2013) the Court revised its definition of disability in light of the  UN Convention, which was now an integral part of the EU legal order (para 30). It concluded that “if a curable or incurable illness entails a limitation which results … from…impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one, such an illness can be covered by the concept of ‘disability’”.

Despite these developments, the reception by scholars and commentators of the Court’s disability-related cases over the next years remained ambivalent, with scholars stating for example that the Court struggled to ‘walk the walk’ of the CRPD’s model of disability or that it excluded certain intersectional experiences of disability. In the last five years and subsequent to most of these criticisms, the Court has had to rule on six more disability-related cases which provide further insights on its approach to disability and the related scope and extent of protection. The next posts will each provide an analysis of one of these cases, giving an indication as to whether the criticisms of the Court’s case law still stand. The concluding post will assess what the last five years of case law have taught us.