ECJ strengthens rights of parents of disabled children in the workplace

Facts of the case

A station supervisor responsible for monitoring a metro station in Italy repeatedly requested her employer to assign her to a job with fixed working hours. This was due to the need to care for her disabled son, who participated in treatment programmes at fixed times. While the employer granted temporary adjustments, it refused to provide a permanent solution. The station supervisor brought an action for a declaration of discrimination on the grounds of the non-permanent reorganisation of her working conditions. The case went through several instances until it reached the Italian Court of Cassation, which finally asked the ECJ for an interpretation of EU law. The core issue in the proceedings before the ECJ was whether the prohibition of indirect discrimination on grounds of disability also applies when employees themselves are not disabled but care for a disabled child. Furthermore, it was considered whether it is the employer's responsibility to take appropriate measures to remedy the discrimination.

The decision

The ECJ confirmed that employees who are disadvantaged because they care for and support their disabled children are covered under EU Directive 2000/78/EC on equal treatment in employment and occupation. In this regard, the ECJ referred to the directive's objective of combating all forms of discrimination on grounds of disability in employment and occupation. Therefore, the prohibition of indirect discrimination on grounds of disability also applies to employees who are discriminated against because they support a disabled child. The ECJ had already confirmed the concept of "joint discrimination " against parents of disabled children years ago (see judgment of 17 July 2008, C-303/06, "Coleman"). Parents of disabled children must be treated equally in employment and occupation and must not be disadvantaged on the grounds of their children's disability. Employers are therefore also obliged to make reasonable accommodations so that employees can provide their disabled children with the necessary support, according to the judges in Luxembourg. The ECJ emphasised, however, that this should not place a disproportionate burden on companies.

Consequences for practice

With the Bervidi ruling, the ECJ has expressly confirmed its previous line of case law. It requires companies to engage in a serious, documented and individualised examination of reasonable accommodation and, in this respect, tightens the requirements for justification. For employers, discrimination prevention is becoming increasingly important as an integral part of modern human resources and organisational management. The extension of employers' obligations to make reasonable accommodations for non-disabled carers goes beyond German law in this respect. German law does not currently provide for a right to transfer to a job that is free of and (better) compatible with care responsibilities. According to the wording of the Ninth Book of the German Social Code, companies' obligations to provide employment suitable for disabled people only apply to severely disabled people and go further in terms of content. It therefore remains to be seen whether the legislator will derive a mandate for action from the decision or whether the courts will identify points of reference for an interpretation of German law that is in line with EU law.

Practical tip

Companies are well advised to establish standardised but customisable processes for reviewing reasonable accommodation measures. Specific barriers, conceivable accommodation options and a comprehensible assessment of reasonableness must be determined and documented on a case-by-case basis in connection with personnel decisions. Where organisation-wide rules – such as attendance or shift systems – can cause indirect discrimination, mechanisms for hardship cases and adjustments must be examined.. Where verifiable documentation is lacking, circumstantial evidence can already be detrimental to employers.