The European Court of Justice (ECJ) in Mohamed Daouidi v Bootes Plus S.L. (Case C-395/15) (2015/C 354/22) considered whether the dismissal of a worker due to temporary incapacity (but of unknown duration) could constitute direct disability discrimination.

Mr Daouidi was employed as a kitchen assistant in a restaurant in Barcelona. He slipped whilst at work, dislocating his elbow. He later told his boss that he would not be able to return to work immediately, after which he was dismissed for poor performance. Mr Daouidi brought a disability discrimination claim in the Spanish Social Court. The Spanish Social Court accepted that the real reason for Mr Daouidi’s dismissal was his temporary incapacity, but referred the case to the ECJ to ascertain whether he could be considered disabled for the purposes of European anti-discrimination legislation, given the uncertain duration of his incapacity. The ECJ ruled that the dismissal could in principle be considered directly discriminatory on the grounds of disability, provided the incapacity was “long-term”. Whether a worker’s incapacity is “long-term” is a question of fact for national courts to decide based on all available objective evidence, including in particular medical and scientific data and knowledge relating to that person’s condition. In the ECJ’s view, such evidence of whether incapacity is long term may also include the fact that, at the time of the discriminatory act, the person’s prognosis as regards short-term progress is uncertain, or the fact that the person’s incapacity is likely to last a significant amount of time before they recover.

Although this decision does not provide particularly helpful guidance, it’s worth noting that the U.K.’s anti-discrimination legislation (the Equality Act 2010) states that the effect of an impairment will be considered long-term if it has lasted or is likely to last for at least 12 months.