This week’s case looks at the principles underpinning disability discrimination law, in particular the duty to find alternative employment.

In XXXXX v HR Rail SA, the Claimant was employed as an apprentice maintenance technician on the Belgium railways.

Shortly after starting, the employee was diagnosed with a heart condition which meant that he had to have a pacemaker fitted.

His medical condition meant he could no longer work on the track or continue his apprenticeship. He was given a warehouse post by his employer instead. A few months later he was dismissed from that warehouse job.

The question for the court: was the dismissal in breach of the law relating to reasonable adjustments?

The European Court of Justice  held that the employer’s obligation is to retain a disabled employee in employment, subject to proportionality, if he is unfit for his contracted post but fit for another role. The disabled employee should be assigned to a role he is capable of unless assigning him to that role constitutes a disproportionate burden on the employer.

Disability discrimination law allows for positive steps to be taken. It allows for disabled employees and workers to be treated more favourably than non-disabled employees and workers. An employer will be relieved of the legal duty to make reasonable adjustments, if the cost of those adjustments are disproportionate or unreasonable. There is a weighing exercise between impact on the individual of dismissal against cost and proportionality of retention on the employer. The bigger the employer, the higher bar for them to claim disproportionality.

Takeaway Point

These sorts of cases are fact sensitive. What is disproportionate for a small employer may be proportionate for a monopoly provider of rail travel in Belgium. An employee with a physical disability may be more able to be assigned alternative employment than an employee who is unfit for their role because of a mental disability.