Chacón Navas v Eurest Colectividades SA

Ms Navas, an employee of a catering company, was sick and waiting for an operation. The ECJ decision does not contain any detail about what illness prevented her from working for eight months.

After eight months her employers wrote to her purporting to end her employment. In the letter they admitted that the termination was 'unlawful' (Spanish industrial law allows unlawful termination with financial compensation). She claimed that the termination was instead 'void' and sought reinstatement according to anti-discrimination provisions. She made her claim to the Spanish Courts under the disability provisions of Spanish law, which were in turn based on the EU Framework Equality Directive 2000/78/EC.

In the absence of a definition in the Directive, the ECJ used the medical model of disability, which focuses on a person's impairment. The judgement has also been criticised for failing to refer to the social model of disability which had been referred to in European Commission documents underpinning the Directive. One reason for the absence of the judges' opinion of the applicability of the social model is that the ECJ does not publish dissenting views of judges on its bench, but instead must issue a collegiate (i.e. joint) judgment. The ECJ found that a worker who is dismissed only on grounds of sickness is not protected by the prohibition of discrimination on grounds of disability. The judgement has been generally regarded as setting the scene for further judgements relating to the definition of disability, as there is no discussion of Navas' illness having been anything more than a 'sickness' (e.g. not a limitation that amounted to 'disability').

The Framework Directive on Employment did not define 'disability', which given the importance of the Directive and the well known laws in other countries (such as the US's Americans with Disabilities Act) was probably intentional. Some academics saw this as an opening for a wider more social definition of disability. However, this lack of definition left the door wide open to a Court exercising its power to narrow, not expand, the definition.

The ECJ case leaves uncertainty about what sicknesses would result in disability, such as episodic mental illness, or sicknesses that take time to become full-fledged permanent limitations.

The consequences of the case mean that the ECJ has protected employers in their actions against employees who lose capacity due to minor or temporary illnesses, in the case of Spanish law allowing them to make a cost-benefit analysis to pay compensation and rid themselves of an individual. The opposite conclusion in Navas would have meant that employers would have had to backfill the position of Navas until she could return to work. The ECJ's interpretation has limited the definition of disability as well as medicalising it, which stands in contrast to EU policy makers attempts, at some levels, to introduce the social model, which is now entrenched in the Convention on the Rights of Persons with Disabilities.

The ECJ decision, with its inherent uncertainty and reliance on the medical approach, may reinforce the medical model in the EU member states, and perhaps other international jurisdictions, like the US.

Lisa Waddington, Professor and European Disability Forum Chair in European Disability Law, Maastricht University, has suggested that the decision may have helped countries to insert a clear social model definition into the Convention on the Rights of Persons with Disabilities, as the EU representative withdrew their opposition to an explicit social model definition following the publication of the ECJ decision.[2]

• EU rapid press release on the ECJ decision