Defining Disability in Denmark

In April the long awaited ruling from the European Court of Justice (ECJ) in the cases of Ms. Skouboe Werge and Ms. Ring was handed down. The ECJ heard both cased together to determine whether an inability to work full time, by itself, because of ill-health could indicate that a person has a disability for the purposes of anti-discrimination legislation. The ECJ says: Yes it can!

Ms. Skouboe Werge and Ms. Ring had been dismissed by their employers and had taken their cases originally in Denmark where statute allows for an employee to be dismissed with a reduced notice period of one month if they have been on sick leave for 4 months in the last year (rolling).

The anti-discrimination framework directive 2000/78/EC is silent on the definition of disability and so nation states have used broad principles to translate protections into domestic legislation such as in the Equality Act 2010. However in giving its judgment the ECJ relied, for the first time ever, on the definition of disability which is offered by the United Nations Convention on the Rights of Persons with Disabilities rather than the earlier narrow reading in the case of ChacÃn Navas in which disability is discussed as being distinct from illness in its pernicious effect on a person's ability to participate in working life.

So what does this mean for employers?

Under the Equality Act 2010 we operate the following definition of disability: "A person (P) has a disability if: (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities."

In practice Employment Tribunals have taken a fairly wide approach to the application of the various tests implied by this definition. However the GB approach of looking at day-to-day activities differs from that employed by the ECJ in this case where working life was the focus. So in future it may be more prudent to look solely at a person's ability to participate in professional life when considering adverse effect. Employers will also have to ensure that they consider reduction in hours, where appropriate, as a reasonable adjustment rather than focusing on only physical adaptions to the workplace.

However, beyond employment, this determination marks more of a departure in that it, for the first time, defers to the primacy of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) which was approved on behalf of the European Community and European Council in 2009. It will be fascinating to see how this impacts on other areas of social life such as travel in the coming years. The Equality Act 2010 operates a large number of exceptions to the application of the duty to make reasonable adjustments.

This may depend on how effectively activists and lobby groups mobilise the primacy of the CRPD in further securing the rights of people with disabilities. If you're interested you can read the full judgement and press release online. Fiach O' Broin-Molloy is Diversity and Policy Lead at the Department for International Development. He blogs in a personal capacity and his views do not represent Departmental policy. To read more content by Fiach click here. To view Fiach's professional profile and connect with him online click here.

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