News Updates

Temporary incapacity may amount to a disability

Tuesday 13th December 2016

In Daouidi v Bootes Plus SL and others, the ECJ has considered whether a temporary incapacity can meet the definition of disability for the purposes of the equality legislation.

Bootes Plus hired Mr Daouidi as a kitchen assistant in April 2014, initially for a period of 3 months on a part-time basis. His contract was subsequently extended for an additional 9 months on a full-time basis. In October 2014, Mr Daouidi slipped on the kitchen floor while at work and dislocated his elbow. He was subsequently dismissed for poor performance the following month.

Mr Daouidi brought a number of claims in the Spanish Social Court, including disability discrimination, which were heard 6 months after his workplace accident when his arm was still in plaster and his prognosis remained unclear.

The Spanish Social Court accepted that there was sufficient evidence to support the argument that Mr Daouidi had been dismissed as a result of his incapacity and referred the case to the ECJ for guidance, given the duration of that incapacity was uncertain.

The ECJ held that a worker may still satisfy the definition of disability even if their incapacity is temporary and the duration is unknown. However, any temporary incapacity must still be “long-term”, which is a factual question for national courts to determine.

Save in relation to those conditions which are deemed to be disabilities, to satisfy the definition of disability in the Equality Act 2010, a physical or mental impairment is only considered long-term if it has lasted or is likely to last for at least 12 months.

All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.