Tracing the Boundaries between Disability and Sickness in the European Union: Squaring the Circle?

Abstract

In recent years the European Union (EU) has sought to develop a far-reaching policy regarding persons with disabilities. However, to date, EU non-discrimination legislation does not provide any clear legal definition of what constitutes a disability. The Court of Justice of the European Union (CJEU) has attempted to fill this gap and, in several decisions, has elaborated on the concept of disability and its meaning under EU law. The CJEU, with reference to the application of the Employment Equality Directive, has explained the notion of disability mainly by comparing and contrasting it to the concept of sickness. Against this background, this article critically discusses recent case law and attempts to highlight that, even though the Court has firmly embraced the social model of disability envisaged by the UN Convention on the Rights of Persons with Disabilities, the boundaries between the concepts of sickness and disability remain blurred.

Conceptualising disability: Health and legal perspectives related to psychosocial disability and work

“…We recognise the tension between narrow [8] and broader [9] conceptualisations of disability, the former being particularly useful in determining who qualifies for disability status, and thus can expect support and reasonable accommodation, while the latter might avoid disability arising in the first place by creating a supportive, inclusive environment to begin with. Favalli and Ferri [10] note that the United Nations Convention on the Rights of People with Disabilities (CPRD) does not contain definitions for disability or persons with disability because 'the idea that disability is a flexible and evolving concept prevailed' . [10] We follow the lead of the CPRD in an attempt in an attempt to be as inclusive as possible.…”

“…Favalli and Ferri [10] note that the United Nations Convention on the Rights of People with Disabilities (CPRD) does not contain definitions for disability or persons with disability because 'the idea that disability is a flexible and evolving concept prevailed' . [10] We follow the lead of the CPRD in an attempt in an attempt to be as inclusive as possible.…”

“…[17] The right to equality entails both eradication of discrimination, a negative aspect of the right, and introduction of positive measures, such as accessibility promotion and reasonable accommodation measures. [10] The jurisprudence of our courts promotes substantive equality, which involves preference of equality of outcomes, and celebrates difference and diversity, but requires the positive duties, alluded to earlier, in order to promote equality. [18] The Employment Equity Act No.…”