EU member states must ensure that their national laws oblige all employers to adopt practical and effective measures to accommodate the needs of persons with disabilities, the Court of Justice of the European Union recently confirmed.

EU law goes a long way in protecting the rights of disabled persons and in ensuring the utmost respect of their dignity. In particular, it seeks to ensure that disabled persons are not discriminated against when it comes to employment. To this end, EU law requires employers to take the necessary appropriate measures to enable disabled persons to have access to, participate in, or advance in employment as well as to undergo training unless the implementation of such measures impose a disproportionate burden on the employer. Such a burden, the law stipulates, ought not be considered as disproportionate when it is sufficiently remedied by national policy on disabled persons.

This particular case concerned Italian law. The Italian government enacted a number of laws relating to the assistance to be offered, social integration and the rights of disabled persons and their right to work. However, the European Commission was not satisfied with the legislative measures so enacted and accused Italy before the CJEU of failing to fulfill its EU obligation to properly transpose the relevant EU directive into national law.

The Commission insisted that this was the case since Italian law does not ensure that the guarantees and adjustments provided for regarding the treatment of disabled persons in the workplace are to apply to all persons with disabilities, all employers, and all aspects of the employment relationship. Furthermore, the Commission alleged that the application of the relevant Italian legislation is dependent on the adoption of further measures by the local authorities or the conclusion of special agreements between those authorities and employers. This means that Italian law does not confer upon persons with disabilities rights which could be directly relied on before a court.

In its judgment, the CJEU noted that the term ‘disability’ is not clearly defined in the EU directive in question. Nonetheless, the court remarked that one could rely on the definition of the concept given in the UN Convention on the Rights of Persons with Disabilities to which the EU is a party.

The latter Convention defines ‘disability’ as a limitation, resulting from a long-term physical, mental, or psychological impairment, which in interaction with various barriers may hinder a person’s full and effective participation in the labour force on an equal basis with other workers.

The same Convention also advocates a broad interpretation of the concept of reasonable accommodation of the needs of disabled persons, by referring to those adjustments to be made, where necessary, to ensure that a disabled person may enjoy and exercise all human rights and fundamental freedoms on an equal basis with other workers.

The CJEU, in line with previous jurisprudence, concurred that reasonable accommodation of the needs of disabled persons refers to the elimination of all barriers that hinder the full and effective participation of disabled persons in professional life on an equal footing with other workers.

This means that, in line with EU law, member states must oblige all employers to adopt effective and practical measures including the adaption of premises, equipment, patterns of working time, distribution of tasks in order to enable any disabled person to have access to, participate in, or advance in employment as well as to undergo training. The implementation of such measures, the Court reiterated, must not impose a disproportionate burden on the employer.

The Court emphasised that such an obligation must apply to all employers and it is not sufficient for member states to provide support and incentives. In this particular case, the Court held against Italy, ruling that the latter member state had failed in its Community obligation to properly and effectively transpose the relevant EU law into national law.

The Maltese legislative measures which transpose the relevant EU laws clearly do not suffer from the same deficiencies as the ones highlighted by the CJEU in Italy’s case. Our law clearly makes provision for an obligation on the part of all employers to make reasonable accommodation for the disability of a person unless the employer can prove that the required alterations would unduly prejudice the operation of his trade or business.

In no uncertain terms, the law lists a number of factors to be taken into account when determining whether any alterations would unduly prejudice the operation of the employer’s trade or business. These include the nature and cost of the alterations, the overall financial resources of the workplace and a number of others.

The law continues to specify, in line with the CJEU’s jurisprudence, that the term “make reasonable accommodation” includes making existing facilities used by employees readily accessible to disabled persons as well as restructuring jobs, instituting part-time or modified work schedules as well as a number of other measures which a Maltese employer is obliged to take.

mariosa@vellacardona.com

Mariosa Vella Cardona is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.

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