THE PROHIBITION OF INDIRECT DISCRIMINATION ON THE GROUNDS OF DISABILITY ALSO EXTENDS TO WORKERS WHO CARE FOR A DISABLE FAMILY MEMBER

 

In the context of a preliminary ruling, the Court of Justice of the European Union (CJEU) was recently called upon to interpret Council Directive 2000/78/EC, which establishes a general framework for equal treatment in employment and occupation, read in light of the United Nations Convention on the Rights o Persons with Disabilities (CRPD). The aim was to clarify whether national courts in Italy must extend the protection relating to reasonable accommodation also to caregivers.

 

The case concerned a female worker, the mother of a person with a severe disability, who claimed the right to obtain permanent adjustment to her working hours and workplace location in order to provide the necessary care to her child. The employer only granted temporary measures.

Consequently, the employee brought an action against the employer alleging indirect associative discrimination, and also sought compensation for damages. Both the Court of First Istance and Court of Appeal dismissed the claim. The employee subsequently lodged an appeal before the Supreme Court.

 

The Supreme Court referred the matter to the CJEU for a preliminary ruling (pursuant to article 267 TFEU) to clarify: whether, under EU law - in particular under Directive 2000/78/EC - a worker who provides care to a severely disabled family member may bring a claim for indirect discrimination linked to the disability of that family member; whether the employer is required to implement reasonable accommodation measures also in favour of the caregiver in order to ensure equal treatment in employment; how the notion of “caregiver” should be defined for the purposes of applying the Directive.

 

With regard to the first question, the CJEU held that the prohibition of indirect discrimination on the ground of  disability also applies to a worker who is not disabled where the less favourable treatment is connected to the disability of the family member receiving care (discrimination by association). In reaching this conclusion, the Court extended the principles established in the Coleman judgment concerning direct discrimination to cases of indirect discrimination as well, in line with Articles 21, 24 and 26 of the Charter of Fundamental Rights of the European Union and Articles 2, 5 and 7 of the CRPD.

 

With regard to the second question, the Court underlined that, pursuant to Article 5 of the Directive 2000/78/EC, interpreted in the light of the Charter and the CRPD, employers are required to adopt reasonable accommodation measures also in respect of  a worker who is not disabled but provides care for a disabled child  (e.g. flexible working arrangements or reassignment), provided such measures do not impose a disproportionate burden on the employer.

 

The third question was declared inadmissible, since the concept of “caregiver” is not defined in Directive 2000/78/EC and is therefore left to the discretion of national legislation.

In conclusion, in this ruling, the CJEU clarified the scope of application of Directive 2000/78/EC by extending it not only to persons with disabilities but also to family caregivers.

 

Accordingly, the Directive, interpreted in the light of the EU Charter of Fundamental Rights and the CRPD, must be fully applied also to a not-disabled worker who suffers less favourable treatment as a result of providing essential care to a disabled person. This entails an extension of the employer’s duty on providing reasonable accommodation also to family caregivers.

 

In other words, by this judgment the Court broadened the protection offered by the Directive, ensuring greater protection for workers who provide family care in the context of associative discrimination, when working conditions put them at a disadvantage because of their caring responsibilities - unless introducing reasonable accommodation obligations for their benefit. This interpretation reinforces the principle of equal treatment in employment for those who provide assistance to persons with disabilities.

 

Authors: Avv. Gianfilippo Chiricozzi e Fiamma De Felice