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United Nations Convention – “Social Model of Disability”
The CGEU has issued a decision on a number of cases brought by HK Danmarkacting on behalf of Ring v Dansk Almenngttigt Boligselskab; Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S concerning disability and its definition, which may have an impact on how the issue of disability is decided under the Equality Act in the UK.
The European Union is a signatory to the Convention on the Rights of Persons with Disabilities (CRPD). This Convention incorporates what it describes as a “social model” of disability. It describes disability as resulting “from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others”. Consequent upon this case, the CGEU has held that this Convention is an integral part of the European legal order and takes precedence over EU legislation itself. It states that the Framework Employment Equality Directive must be interpreted in a manner consistent with the Convention as far as possible.
The importance of this to the issue of disability under the Equality Act is that the focus on whether or not someone is disabled is on their day to day activities. While professional life has been deemed to be included within this, they are by no means one and the same thing. An example of this is where an employee, whose job involves heavy lifting, develops a back condition. While this might not necessarily prevent them from carrying out their normal day to day activities, it may well impair their ability to carry out their work duties.
The decision in this case suggests that this anomaly, which would preclude the individual from being qualified as disabled, is no longer compatible with EU law. Consequently it is strongly suggested that employers must owe a duty of reasonable adjustment to employees who are hindered by their disability from fully and effectively participating in professional life and carrying out their work duties even if their impairment does not substantially affect their normal day to day activities.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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