In Tartu Vangla the Court of Justice of the EU (”the Court”) reiterated that employers must conduct an individualised assessment to determine if an employee with a disability can perform their job tasks, potentially with the support of reasonable accommodations, before dismissing them. However, the Court failed to fully explore the suitability of the assessment procedures themselves in light of the requirements of the UN Convention on the Rights of Persons with Disabilities (CRPD).

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.