Chacón Navas v Eurest Colectividades SA
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''Chacón Navas v Eurest Colectividades SA'' (2006
C-13/05
is an
EU labour law European labour law regulates basic transnational standards of employment and partnership at work in the European Union and countries adhering to the European Convention on Human Rights. In setting regulatory floors to competition for job-creatin ...
case that sets forth a uniform definition of
disability Disability is the experience of any condition that makes it more difficult for a person to do certain activities or have equitable access within a given society. Disabilities may be Cognitive disability, cognitive, Developmental disability, dev ...
in the European Union. Both the
Treaty of Amsterdam The Treaty of Amsterdam, officially the Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts, was signed on 2 October 1997, and entered into force on 1 May 1999; i ...
and the EU Framework Directive on Employment left open the definition of disability, which allowed the Court to adopt its own definition. The judgment has been criticised by academics as potentially being too close to a
medical model of disability The medical model of disability, or medical model, is based in a biomedical perception of disability. This model links a disability diagnosis to an individual's physical body. The model supposes that this disability may reduce the individual's qua ...
(although it does not require medical diagnosis of a disability), rather than the
social model of disability The social model of disability identifies systemic barriers, derogatory attitudes, and social exclusion (intentional or inadvertent), which make it difficult or impossible for disabled people to attain their valued functionings. The social mode ...
.


Facts

Ms Navas, an employee of a catering company, was sick and waiting for an operation. The ECJ decision does not contain any detail about what illness prevented her from working for eight months. After eight months her employers wrote to her purporting to end her employment. In the letter they admitted that the termination was 'unlawful' (Spanish industrial law allows unlawful termination with financial compensation). She claimed that the termination was instead 'void' and sought reinstatement according to anti-discrimination provisions. She made her claim to the Spanish Courts under the disability provisions of Spanish law, which were in turn based on the EU Framework Equality Directive 2000/78/EC.


Judgment


Domestic courts

The domestic Spanish labour courts agreed with Ms Navas' employers that illness did not amount to 'disability', which was the subject of the EU directive and that Spanish law allowed Eurest to fire Navas based on their cost benefit analysis (i.e. financial compensation versus continuing to employ her). This interpretation allows employers to discriminate against sick people, as opposed to people with disability.


Advocate General

Advocate General
Ad Geelhoed Leendert Adrie "Ad" Geelhoed (12 November 1942 – 20 April 2007) was a Dutch professor, civil service worker, and Advocate-General of the European Court of Justice. Biography Geelhoed was born in 1942 in Vught, he finished his study of Dutch la ...
issued an opinion based on a medical model of disability. He also stated that an "autonomous and uniform" Community meaning should be given to "disability". He said disability is tied to the concept of a permanent limitation on activities, and while acknowledging that disability could arise from sickness, sickness was a separate concept that did not mean disability. He found that sickness by itself is not enough to trigger protection under the Directive. This reasoning was adopted by the
European Court of Justice The European Court of Justice (ECJ, french: Cour de Justice européenne), formally just the Court of Justice, is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European Un ...
(ECJ).


European Court of Justice

The ECJ started with Article 136 TEC, which states that the Community exists with "a view to lasting high employment and the combating of exclusion." It referred to the mention of disability in the
Community Charter of the Fundamental Social Rights of Workers The Community Charter of the Fundamental Social Rights of Workers (9 December 1989) is a principles-based charter of human rights that apply specifically to the workforce in the European Union. It is used as an interpretative aid by the Court of Jus ...
, para 26.


Significance

In the absence of a definition in the Directive, the ECJ used the medical model of disability, which focuses on a person's impairment. The judgement has also been criticised for failing to refer to the
social model of disability The social model of disability identifies systemic barriers, derogatory attitudes, and social exclusion (intentional or inadvertent), which make it difficult or impossible for disabled people to attain their valued functionings. The social mode ...
which had been referred to in European Commission documents underpinning the Directive. One reason for the absence of the judges' opinion of the applicability of the social model is that the ECJ does not publish dissenting views of judges on its bench, but instead must issue a collegiate (i.e. joint) judgment. The ECJ found that a worker who is dismissed only on grounds of sickness is not protected by the prohibition of discrimination on grounds of disability. The judgement has been generally regarded as setting the scene for further judgements relating to the definition of disability, as there is no discussion of Navas' illness having been anything more than a 'sickness' (e.g. not a limitation that amounted to 'disability'). The Framework Directive on Employment did not define 'disability', which given the importance of the Directive and the well known laws in other countries (such as the US's
Americans with Disabilities Act The Americans with Disabilities Act of 1990 or ADA () is a civil rights law that prohibits discrimination based on disability. It affords similar protections against discrimination to Americans with disabilities as the Civil Rights Act of 1964 ...
) was probably intentional. Some academics saw this as an opening for a wider more social definition of disability. However, this lack of definition left the door wide open to a Court exercising its power to narrow, not expand, the definition. The ECJ case leaves uncertainty about what sicknesses would result in disability, such as episodic mental illness, or sicknesses that take time to become full-fledged permanent limitations. The consequences of the case mean that the ECJ has protected employers in their actions against employees who lose capacity due to minor or temporary illnesses, in the case of Spanish law allowing them to make a cost-benefit analysis to pay compensation and rid themselves of an individual. The opposite conclusion in ''Navas'' would have meant that employers would have had to backfill the position of Navas until she could return to work. The ECJ's interpretation has limited the definition of disability as well as medicalising it, which stands in contrast to EU policy makers attempts, at some levels, to introduce the social model, which is now entrenched in the
Convention on the Rights of Persons with Disabilities The Convention on the Rights of Persons with Disabilities is an international human rights treaty of the United Nations intended to protect the rights and dignity of persons with disabilities. Parties to the convention are required to promote, ...
. The ECJ decision, with its inherent uncertainty and reliance on the medical approach, may reinforce the medical model in the EU member states, and perhaps other international jurisdictions, like the US. Lisa Waddington, Professor and European Disability Forum Chair in European Disability Law, Maastricht University, has suggested that the decision may have helped countries to insert a clear social model definition into the
Convention on the Rights of Persons with Disabilities The Convention on the Rights of Persons with Disabilities is an international human rights treaty of the United Nations intended to protect the rights and dignity of persons with disabilities. Parties to the convention are required to promote, ...
, as the EU representative withdrew their opposition to an explicit social model definition following the publication of the ECJ decision.Prof. Lisa Waddington's Powerpoint presentation on the Navas decision


Notes


References

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External links


EU rapid press release on the ECJ decision
{{DEFAULTSORT:Chacon Navas v Eurest Colectividades SA Spanish case law Disability case law European Union labour case law 2006 in European Union case law Court of Justice of the European Union case law