EU: disabled workers unable to do their job must be reassigned provided it does not constitute a “disproportionate burden” for the employer

In a judgment passed on 10 February 2022, the Court of Justice of the European Union ruled that “where a worker becomes permanently incapable of remaining in his or her job because of the onset of a disability, reassignment to another job may constitute an appropriate measure in the context of reasonable accommodation”, under Article 5 of Directive 2000/78. The ruling emanates from a dispute in Belgium, where a railway worker, who was declared disabled because of a heart condition requiring a pacemaker, was reassigned as a storekeeper and then dismissed a few months later because he was still a “trainee” at HR Rail, the sole employer of railway staff of the Belgian railway. However, the CJEU says, “the fact that the staff member employed by HR Rail was not, at the time of his dismissal, recruited on a permanent basis, does not preclude his professional situation from falling within the scope of Directive 2000/78”. According to the directive, appropriate measures should be enacted by the employer, such as “adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources”. However, if the worker remains unable to perform their task, the court says reassignment to another position may be considered an “appropriate measure” provided that it does not constitute a “disproportionate burden” on the employer. This requires that a job the worker is able to do is available, that the employer’s financial resources allow it or, failing that, that it is possible to obtain public funds to reduce this “burden”.