This request for a preliminary ruling concerned the interpretation of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.

Mr Ruiz Conejero worked as a cleaning agent in a hospital in Spain. He worked for the hospital without incident, had no disciplinary issues and no work-related problems. Mr Conejero suffered from a disease of the endocrine-metabolic system, namely, obesity, and from functional limitation of the spine. He was recognised, under Spanish law, as having a disability.

Mr Conejero informed his employer of all absences and provided the relevant medical certificates confirming the reason for, and duration of, those absences. He later received a letter from the respondent informing him of his dismissal under Article 52 (d) of the Workers’ Statute on the ground that the cumulative duration of his absences, albeit justified, had exceeded the limits laid down in statute, namely, 20% of working time during March and April 2015, and that during the previous 12 months he had been absent 5% of working time.

Mr Conejero did not dispute the absences but said there was a direct link between those absences and his disability. He claimed discriminatory dismissal on grounds of disability.

The Court was asked, in essence, whether Article 2 (2) (b) of Directive 2000/78 must be interpreted as precluding national legislation which provides that an employer may dismiss a worker on the grounds of intermittent absences from work, even if justified, even in a situation where those absences are the consequence of illnesses attributed to that worker’s disability. The Court had to decide:

• Whether the claimant’s limitation in capacity must be regarded as a disability within the meaning of the Directive;
• Whether Article 52 (d) of the Workers’ Statute, the national legislation at issue, is liable to produce discrimination against persons with disabilities;
• Whether the difference in treatment between workers with disabilities and workers without disabilities deriving from Article 52 (d) of the Workers’ Statute is objectively justified by a legitimate aim, whether the measures implemented to achieve that aim are appropriate and whether they do not go beyond what is necessary to achieve the aim pursued by the Spanish legislature.

The Court ruled:

Article 2(2)(b)(i) of Council Directive 2008/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding national legislation under which an employer may dismiss a worker on the grounds of his intermittent absences from work, even if justified, in a situation where those absences are the consequence of sickness attributable to a disability suffered by that worker, unless that legislation, while pursuing the legitimate aim of combating absenteeism, does not go beyond what is necessary in order to achieve that aim, which is a matter for the referring court to assess.
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62016CJ0270