The claimant in this case was a Barcelona chef who hurt his elbow at work and was dismissed after six months' incapacity. The prognosis was uncertain at the time of dismissal. Could he have been disabled and therefore protected under the Directive and related domestic legislation?

The answer appears to be yes - but each case must be determined on its merits by domestic courts:

"– the fact that the person concerned finds himself or herself in a situation of temporary incapacity for work, as defined in national law, for an indeterminate amount of time, as the result of an accident at work, does not mean, in itself, that the limitation of that person’s capacity can be classified as being ‘long-term’, within the meaning of the definition of ‘disability’ laid down by that directive, read in the light of the UN Convention [on the Rights of Persons with Disabilities];

– the evidence which makes it possible to find that such a limitation is ‘long-term’ includes the fact that, at the time of the allegedly discriminatory act, the incapacity of the person concerned does not display a clearly defined prognosis as regards short-term progress or the fact that that incapacity is likely to be significantly prolonged before that person has recovered; and

– in the context of the verification of that ‘long-term’ nature, the referring court must base its decision on all of the objective evidence in its possession, in particular on documents and certificates relating to that person’s condition, established on the basis of current medical and scientific knowledge and data."

How long is 'long-term'? That remains uncertain, although it is crucial to a worker being afforded protections: "...following the ratification by the EU of the UN Convention, the Court took the view that the concept of ‘disability’ within the meaning of Directive 2000/78 must be understood as referring to a limitation which results in particular from long-term physical, mental or psychological impairments which, in interaction with various barriers, may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers..."

Note that the Disability Discrimination Act 1995, which continues to apply in NI (the Equality Act 2010 applies in GB), refers to "...a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities." That appears to us to be a higher barrier to cross than that under the Directive: "may hinder the full and effective participation" has no reference to "substantial... adverse effect."

It could be argued under the CJEU's reading of the Directive that a worker is disabled if, on a long-term basis, they cannot participate fully on an equal basis with colleagues, whereas in the UK, whatever ailments the worker has, it must be severe enough to stop them from carrying out day-to-day activities.

In relation to the definition of long-term, the CJEU is not very helpful. The claimant was off for six months or so and would have been off longer had he remained in employment. It's arguable that six to twelve months would be long-term.

In domestic legislation in NI, Paragraph 2(1) of the DDA defines long-term thus:

"The effect of an impairment is a long-term effect if—

(a)it has lasted at least 12 months;

(b)the period for which it lasts is likely to be at least 12 months; or

(c)it is likely to last for the rest of the life of the person affected."

So, there may be little difference here - employers (and courts) have to consider how long an incapacity might last, although it's arguable that whatever length of time it is could be a few months less than 12 under the Directive in order to meet the definition of disabled. Certainly, it puts the onus on the employer to get a short-term prognosis of likely recovery, which will often be impossible, if it is to argue the employee is not disabled.

Claimants in the public sector arguing that they are disabled may prefer, pending Brexit at least, to claim for protected rights under the Equal treatment Directive than the DDA, where there is a doubt about their meeting the definition of disability.
http://www.bailii.org/eu/cases/EUECJ/2016/C39515.html