Under EU law, counting sick days to determine whether an employee has exceeded a certain limit after which they can be dismissed may still amount to indirect disability discrimination prohibited by the Employment Equality Directive. This blog advances the argument, as clarified in Pauni, that this remains the case even when national legislation – as in Italy – expressly allows such dismissals and provides full termination pay and all other benefits due, apart from compensation in lieu of notice.

In the Italian tourism sector, a Collective Labour Agreement allows employees to be absent due to illness for 180 calendar days per year. As Advocate General Rantos explains, during this period, employment is retained and wages are paid by the National Social Security Institute with a contribution by the employer of approximately two months’ salary. Employees may request a further 120-day protected period without pay, except where the illness is chronic and/or mental (a potential discrimination outside the scope of the case at hand, footnote 17, see also Maes, 2022). By contrast, for oncological conditions, an unlimited extension of job protection is provided. If dismissal occurs during the protected period, employees may seek reinstatement or waive that right in exchange for a lump sum indemnity, supplemented by salary owed from dismissal to reinstatement (para 26).

Not precluded…

In Pauni the Court of Justice of the EU confirms its HK Danmark and Conejero case law, reiterating that a distinction based on (prolonged sickness) absence is liable to place any worker with a disability at a disadvantage since such a worker “is exposed to a greater risk of injury or, more generally, of being absent by reason of health problems, on account of his or her disability or an illness connected with his or her disability” (para 43). Simply counting sick days might, as such, form an indirect discrimination based on disability, unless it pursues a legitimate aim through appropriate and necessary means (art. 2, §2 (b) Employment Equality Directive). The Court leaves much of the assessment to the referring court, yet it notes that the Italian legislation at issue appears to be designed on the one hand to ensure workers’ ability and availability to perform their professional duties, which it indicates, can indeed form a legitimate aim of social policy. In that regard it expressly refers to recital 17 of the Employment Equality Directive which clarifies that that directive does not require the maintenance in employment of a person who is no longer capable or available to perform the essential functions of the post concerned, without prejudice to the obligation to provide reasonable accommodation for people with disabilities. On the other hand the Court accepts that the Italian legislation at issue also aims to protect those on sick leave by guaranteeing their retention in employment for a predefined period. In the Court’s view, this legislative structure may support the conclusion that the measure is appropriate to the legitimate aim pursued (paras 46 – 53, see previous blogs on the concept of ‘proportionality’ in disability cases here and here).

…but obligation of reasonable accommodation

Crucially, the Court emphasises – consistent with HR Rail and Ca Na Negreta – that dismissal rules do not relieve employers of their obligation to provide reasonable accommodation (paras 55-56). In Ca Na Negreta this obligation persisted even when a worker was deemed totally and permanently incapable of performing contracted duties, as any other interpretation would undermine the objective of occupational integration of persons with disabilities as set out in articles 21 and 26 of the Charter of Fundamental Rights of the European Union and articles 2 and 27 of the UN Convention on the Rights of Persons with Disabilities (para 53). By analogy, the Court now finds that the same would apply where the employer is informed of the existence of a disability and – according to national legislation – could nevertheless proceed with a dismissal without being obliged to provide reasonable accommodation (para 60-61). In his conclusion, Advocate General Rantos had gone further suggesting that the referring court could determine – in light of national law and the specific circumstances of the case – whether an employer must ask if the worker’s absences are linked to a disability, before dismissing them for exceeding the protected period (para 60). The Court avoided that sensitive issue and simply concluded that even if the employee had informed the employer of their disability, the employer would still have been authorised to proceed with the dismissal (para 60).

The considerations mentioned above brought the Court to the conclusion that EU legislation does not preclude national legislation permitting dismissal after a protected sick-leave period provided that (1) such a measure does not go beyond what is necessary to achieve the social policy aim of ensuring the ability and availability of the worker, and (2) that it does not prevent full compliance with the right to reasonable accommodations for persons with disabilities (para 63). Finally, the Court also underlines that the possibility – encompassed in national legislation – to extend the protected period with an (unpaid) additional period of 120 days does not constitute a reasonable accommodation as such, as it is a general statutory provision rather than an individualised measure taken by the employer for the benefit of a person with a disability (para 65-66).

In conclusion, the Pauni case forms a logical culmination point between two lines of reasoning the Court had set out in earlier judgments. In HK Danmark and Ruiz Conejero, the Court ruled that discrimination based on absences due to illness may constitute indirect discrimination, but that such discrimination may be justified (e.g. by the legitimate aim of promoting flexibility of the labour market or combating absenteeism at work). In HR Rail and Ca Na Negreta, the Court ruled that the right to reasonable accommodation also applies when an employee is no longer able to perform their contractual duties. The importance of the Pauni case now lies in the fact that these two lines of reasoning come together, making it clear that the right to reasonable accommodation takes precedence over any generic justification for the possibility of dismissing employees based on sickness absence. This certainly benefits the rights of persons with disabilities. The importance of this judgment cannot be underestimated: it rightfully guarantees that employers cannot escape their duty to individually accommodate persons with a disability (within reason), even when national legislation would expressly allow for a dismissal after the expiration of a protected period.