The Court of Justice’s case law on disability discrimination and the Employment Equality Directive over the past five has helped to clarify a number of issues. We now have a better understanding of what impairments can amount to a disability and the extent of the reasonable accommodation duty. Meanwhile what amounts to a disproportionate burden in the context of reasonable accommodation has been considered by Advocate Generals, but we still have no clear word on this from the Court.

What Kind of Conditions can Amount to a Disability under the Directive?

We now know that sensory impairments can amount to disabilities as evidenced by Tartu Vangla, which concerned a prison guard with a hearing impairment, and TC and UB v Komisia za zashtita ot diskriminatsia (TC and UB), which involved a juror who was blind. Meanwhile, the worker in VL v Szpital Kliniczny, had a ‘moderate and permanent’ disability (para 12), as established by a disability certificate. Nevertheless, there is no indication in the Court’s case law, or the Directive, that an individual needs to have officially been assessed as having a disability in order to be protected by the Directive.

In HR Rail the Court interpreted broadly the interactional element of its definition of disability. The Court found that having a pacemaker hindered the worker’s professional life through its interaction with “various barriers”. Specifically, pacemakers react to electromagnetic fields emitted by railway tracks, and this prevented the worker from carrying out the work for which he was recruited. No doubt, in many other contexts, a pacemaker would not have resulted in a worker facing “barriers” at work, and would therefore not have amounted to a disability under the Directive.

What is a reasonable accommodation?

The Court recognised as (possible) accommodations: allowing a worker to use assistive devices – specifically, a hearing aid (Tartu Vangla) or “medico-technical” equipment (TC and UB) – to enable the worker to meet a “genuine and determining occupational requirement”. An organisational form of accommodation was also addressed in the latter case, where the Court suggested that one accommodation could be only to assign such a juror to cases in which they could adequately assess the evidence. This amounts to a partial reallocation of tasks. HR Rail similarly concerned an organisational accommodation. In addition to reasonable accommodation in the form of material and organisational measures, the Court recognised a further type of reasonable accommodation in TC and UB, when it referred to “personal […] assistance” (para 62).

What do we know about disproportionate burden?

In HR Rail the Court found that a reassignment to a completely new position could be a form of reasonable accommodation, but noted that this would only be possible where there was at least one vacancy for a job that the worker was able to carry out. It therefore did not interpret the duty as extending to the creation of a new position which the worker with a disability is able to carry out, although it did not explicitly state that the creation of such a position would amount to a disproportionate burden. In contrast, Advocate General Rantos did take this view (para 77). The Court’s finding in Ca Na Negreta further reinforced the reasonable accommodation duty. It held that national legislation allowing a worker with a disability to be dismissed on the grounds of being permanently unable to do the job, without the employer being required to make or maintain a reasonable accommodation which would allow the worker to perform the work, breaches the Directive.

In Tartu Vangla, Advocate General Saugmandsgaard Øe noted that no evidence had been presented to show that allowing a prison officer to wear a hearing aid in order to enable him to meet the required levels of hearing would amount to a disproportionate burden (para 100). Clearly, the employer must produce such evidence to establish that a disproportionate burden exists.

Conclusion

The Court’s case law confirms that reasonable accommodation has been an issue which has troubled national courts over the past five years, and the Court is gradually clarifying what is required of employers in this context. The focus on what amounts to a disability, found in the earlier case law, is now less prominent, although the CJEU’s case law inevitably continues to address this, as it relates to individuals who have brought litigation. Two interesting cases to look out for in 2025 are Bervidi, which concerns reasonable accommodation duties for/towards a person who associates with (cares for) a person with a disability and Pauni, which concerns possible indirect discrimination against persons with disabilities resulting from limitations on the amount of sick leave and possible dismissal after having been on sick leave for some time.