In Daouidi v Boote Plus SL, an Advocate General in the
Court of Justice of the European Union has recently delivered an opinion (in French only so far) about the
meaning of disability in the EU's Employment Equality Framework
Directive. The Advocate General's opinion is not binding
on the Court so this is not a final decision. It is not a
controversial opinion but the facts offer something novel.
The facts we know:
Employee starts as a temporary chef but is later offered
and accepts a fixed term contract.
The chef has been employed for 9 months
The chef slips on the kitchen floor and falls, dislocating his
The chef is off work on sick leave for 7 weeks with his arm in
The chef expects to get better and be able to return to work
but is not yet well enough to do so
The Employer decides that it cannot wait for the chef to get
better and dismisses the employee summarily
The Advocate General's opinion was that a worker who
finds himself temporarily unable to work for an indeterminate
period because of a work accident is likely to be disabled for the
purposes of the Directive. However, the Advocate General said
it was up to the national courts to make that decision.
In the UK, Employment Tribunals turn to the Equality Act
2010. For us, the question is whether the physical or mental
impairment is likely to have a substantial and long-term effect on
day-to-day activities or is likely to recur. Under the 2010
Act, long-term effect means at least 12 months.
If, when the chef was dismissed, he could argue that it
was likely that for another 10 months this dislocated elbow would
have an adverse effect on his ability to carry out day to day
activities, then he could be a disabled person under the Equality
Many UK employers and HR professionals may not consider Equality
Act obligations at all in this context – where an employee
with 9 months service has been off for 7 weeks on sick leave.
It may not cross their minds that an impairment of this type
could be a disability. Although this case does not represent
a change to EU or UK law, it is a useful reminder of how and when
disabled person status can be conferred.
If you are considering dismissing an employee due to their
sickness record, always consider whether the Equality Act will
apply or not before making the decision to dismiss.
Alternatively, get in touch with your usual Clyde & Co
In SSE Generation Limited v Hochtief Solutions AG and another decided on 21st December 2016, the Court of Session in Scotland considered a contractor's potential design liability under the NEC Form of Contract.
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