EU Court of Justice: employer must adapt a workplace for the disability

14.09.2019 EU Court of Justice: employer must adapt a workplace for the disability

On 11 September 2019, the Court of Justice passed a preliminary ruling in case C-397/18 aimed at an efficient guarantee of the right to work for the disabled as possible.

Prepared by Associate Partner Dr. Ieva Povilaitienė and Associate Attorney at Law Indrė Mažeikaitė

The Court pronounced that the employer, in assessing a disabled employee, has the right to apply such assessment criteria as: level of employee’s efficiency, his abilities to perform various tasks in workplaces in the company and the level of absence from work. However, before dismissing a disabled employee, the employer must prove that it took measures to adapt a workplace for the disability. The following shall be regarded as measures adapting a workplace for the disability: proper adapting of premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources.

In other words, the Court emphasized that the employer must have created conditions for the disabled employee to work equally as the employees without disability in order to subsequently be able to assess these employees on equal conditions. But the Court also noted that in adapting a workplace to the disability, a disproportionate burden should not be imposed on the employer, taking account, in particular, of the financial and other costs entailed, the scale and financial resources of the undertaking and the possibility of obtaining public funding or any other assistance.

Finally, the ruling says that the employer is not required to recruit, promote, maintain in employment an individual who is not competent, capable and available to perform the essential functions of the post concerned, without prejudice to the obligation to provide reasonable accommodation for people with disabilities.