Skrevet af
The obligation to provide reasonable accommodation also applies to employees who have a child with a disability
The European Court of Justice has ruled that the prohibition of indirect discrimination on grounds of disability and the employer’s obligation to provide reasonable accommodation also apply if an employee’s child has a disability and the employee is the primary provider of the care needed by the child.
Skrevet af
Dorthea Bisgaard Vase
Forfattere
Under the EU Employment Equality Directive, an employer may not discriminate against an employee on grounds of disability. In addition, the employer must take appropriate measures to the extent reasonable to ensure the employee’s continued access to employment, provided that such measures do not impose a disproportionate burden on the employer.
In a previous ruling, the European Court of Justice stated that the protection against discrimination on grounds of disability also applies to cases of direct discrimination on grounds of a child’s disability if the employee is the child’s primary caregiver. In this case, an Italian court wished to clarify whether the protection also applies to cases of indirect discrimination and whether the protection includes the employer’s obligation to make reasonable accommodation.
During the proceedings, an Italian station operator claimed that she was subjected to unlawful indirect discrimination because the employer did not allow her the flexibility she needed in terms of adjusting her working hours and tasks in order to care for her child, who had a disability.
The Advocate General presented their opinion in spring 2025, and our article on the opinion can be found here (in Danish).
The effectiveness of the prohibition
With its final ruling, the ECJ has now established that the purpose of the Employment Equality Directive is to combat ”all forms” of discrimination in employment and occupation on the basis of disability.
The ECJ states that there is therefore no basis for distinguishing between direct and indirect discrimination in the case of an employee who provides the primary care of their disabled child – so-called “discrimination by association”.
Furthermore, according to the ruling of the ECJ, the prohibition of discrimination by association would be deprived of an important element of its effectiveness if it were not accompanied by an obligation for the employer to make reasonable accommodation to enable the employee to participate in professional life on an equal basis with employees who do not have a child with a disability.
The ECJ then refers to the fact that it has previously established that a broad definition of the concept of “reasonable accommodation” applies and that a reduction in working hours and, in certain circumstances, reassignment to another job (provided there is a vacant position) may constitute some of the accommodation measures covered by the Employment Equality Directive.
However, the ECJ also specifies that the obligation to make reasonable accommodation – as is the case for employees with a disability – does not apply if it imposes a disproportionate burden on the employer.
In relation to the specific case, the ECJ states that it was for the national court in Italy to assess whether or not accommodating the Italian station operator’s request would impose a disproportionate burden on the employer.
Norrbom Vinding notes:
The ECJ has now finally ruled that the prohibition of discrimination on grounds of disability in relation to employees who have a child with a disability (for whom the employee is the primary caregiver) also covers indirect discrimination and the obligation to make reasonable accommodation to working conditions, provided that such measures do not impose a disproportionate burden on the employer.
The ruling will have an impact on the legal situation in Denmark, where the Supreme Court ruled already in 2016 that this issue was unclear and that a decision on the correct interpretation of the Employment Equality Directive should be left to the ECJ.
The content of the above is not, and should not be a substitute for legal advice.
Forfattere