Absence management policies which dismiss disabled employees
The Spanish Court referred the question of whether the Equal Treatment Framework Directive (the Directive) precludes absence management policies which treat disabled employees whose absence is caused by their disability the same as other employees to the EJC.
The ECJ has held in Ruiz Conejero v Ferroser Servicios Auxiliares SA that such an absence management policy does not contravene the Directive.
Mr Ruiz Conejero, who suffers from a disability, was subjected to a provision of Spanish national law which provides that an employer is entitled to dismiss an employee for absences from work which amount to 20% of the employee's working hours in two consecutive months. This is subject to the proviso that the total absences in the previous 12 months amount to 5% of working hours, or 25% of working hours in four non-consecutive months within a 12-month period. Mr Ruiz Conjero claimed that, as his absence from work was caused by his disability, the provision discriminated against him because he was disabled.
The Spanish Court argued that the aim of the provision in question was to combat absenteeism. The measure aimed to balance the interests of employers and the workforce by ensuring that employers can maintain their productivity while also ensuring that workers are not unreasonably dismissed. The ECJ agreed that combating absenteeism in the workplace where there is evidence that it is causing material harm both at national level and to employers who have to suffer its consequences represented a legitimate aim. But the ECJ also highlighted that in achieving this legitimate aim, the regulation allowing the dismissal of disabled employees for intermittent work absences which are related to the disability, must not go further than necessary to achieve this aim. The issue of whether it was appropriate and necessary was for the Spanish Court to decide.
Take note: The ECJ's decision will offer comfort to employers and follows the reasoning which has been adopted in UK case law. It's important to remember that employers are not required to completely disregard disability-related absence when operating their sickness absence policies. The employer should consider the periods of absence in detail to assess the level of absence that is attributable to the disability in question as well as what the employer can reasonably sustain. It is also important for the employer to comply with the duty to make reasonable adjustments and explore ways in which it can reasonably support the employee to return to work.
This article is taken from HR Law – February 2018.