A fogyatékosság fogalma a foglalkoztatás és munkavégzés során történő hátrányos megkülönböztetés tilalmával összefüggésben

Abstract

The Employment Framework Directive (2000/78/EC) prohibits discrimination based on religion, belief, disability, age or sexual orientation in relation to employment and occupation. The Directive creates a general framework for combatting discrimination in particular on grounds of disability and, in this context, specifies that, in order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation must be provided. This means that employers must take appropriate measures to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer.

As the EU legislator did not specify in the Directive the notion of ‘disability’, it was up to the Court of Justice to fill this gap. In its judgment in the Chacón Navas Case (C-13/05) in July 2006, the Court did define this notion making clear that the term ‘disability’ differs from the term ‘sickness’. As a response to the practical difficulties in marking the borderline between disability and certain diseases, the Court, in the Ring & Skouboe Werge Cases (C-335/11 & C-337/11), gave, in April 2013, a new ruling in the matter by pointing out that an illness entailing physical, mental or psychological limitation may be assimilated to a disability.

In the Z. Case (C-363/12), the Court was asked by an Irish Court to decide whether the health problem of a woman suffering from a rare condition which prevents her from supporting a pregnancy, who entered into a surrogacy agreement and was, after the birth of her child, refused to be granted a paid maternity or adoption leave, amounts to a disability (the judgment was delivered in March 2014). In the FOA Case (C-354/12), the Court ruled, in December 2014, that certain forms of obesity can constitute a disability.