Permanent disability: adjustments before dismissal

On 18 January 2024 the First Chamber of the Court of Justice of the European Union gave judgment in case C-631/22, at the request of the High Court of Justice of the Balearic Islands. The case concerns a refuse-collection truck driver who, after a workplace accident in 2016, was declared to be in a situation of total permanent incapacity for his usual profession. In March 2020 his employer notified him that his contract was ended under article 49.1.e) of the Workers’ Statute, which provides for termination on death, severe disability or total or absolute permanent incapacity.

The Court replies that article 5 of Directive 2000/78, read in the light of the Charter of Fundamental Rights and the UN Convention on the Rights of Persons with Disabilities, precludes a national rule that allows the employer to end the contract on supervening permanent incapacity without first being required to provide for or maintain reasonable adjustments enabling the worker to keep the job, or to show that they would be an excessive burden. It is a ruling with direct effect on a widespread practice.

What the Directive requires

Directive 2000/78 prohibits disability discrimination in employment and requires employers to take appropriate measures, in each case, so that people with disabilities can gain access to employment, carry it out and progress, unless those measures impose an excessive burden. The Court recalls that when a worker becomes permanently unfit for the post, a move to another post may be a reasonable adjustment, provided there is at least one vacancy the person can fill and the person has the necessary skills, abilities and availability.

To decide whether the burden is disproportionate, the costs, the size, the financial resources and the total turnover of the business and the availability of public funds must be considered. The obligation is therefore not absolute, but the task of analysing it falls on the employer before dismissing.

The specific case

According to the facts supplied by the referring court, the worker had been reassigned to another post in the company from August 2018 until March 2020, and that post appeared compatible with his physical limitations. The termination was notified eleven days after the formal recognition of his incapacity for his usual duties. The Court notes that the Spanish rule appears to relieve the employer from making or keeping such adjustments, although it is for the national court to verify this.

It also rejects two arguments. That the incapacity entitles the worker to a Social Security pension is irrelevant, because forcing the worker to bear the risk of losing the job in order to receive a benefit undermines the practical effect of the Directive. And that organising Social Security is a matter for the State does not exempt it from respecting EU law.

What to review

Companies whose workforce includes cases of permanent incapacity can review with their employment adviser the procedure they follow: who assesses the alternatives, which vacant or adaptable posts exist, how the analysis is documented and, if redeployment is ruled out, for what reasons. A written record of that assessment is the best defence against a challenge.

It should be borne in mind that the case concerns total permanent incapacity, which affects only the usual profession, and that the Court criticises precisely that the Spanish rule treats it like absolute incapacity or death. Each situation needs individual examination, and the development of Spanish case law will show how it applies in practice.

Before ending a contract over incapacity, the question is whether the work can be adapted.

This article is general information. It is not legal, tax or investment advice, and it does not take anyone’s particular circumstances into account.