What happens when an employee with a disability is unable to return to their original job and no type of adjustment will make this possible? This was the dilemma facing the Court of Justice (“the Court”) in XXXX v HR Rail.

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.