XXXX v HR Rail SA

In this case, the Court of Justice of the European Union (CJEU) established that trainees, just like workers, can be assigned to another position if, owing to a disability, they have been declared incapable of performing the essential functions of the post that they occupy, and the transfer does not impose a disproportionate burden on the employer.

The facts concern a member of staff who was recruited to perform railway track maintenance and placed on a traineeship. A year later, that same trainee was diagnosed with a heart condition that required the fitting of a pacemaker, a device which is sensitive to the electromagnetic fields present, inter alia, on railway tracks. On that basis the trainee was recognised as having a disability by the Belgian Federal Public Service for Social Security, however the employer dismissed the trainee ‘owing to his total and permanent incapacity to perform the duties for which he had been recruited’ and asserting that trainees do not benefit from the from a reassignment within the company [para. 21].

The CJEU first focuses on the definition of worker, reaching the conclusion that, based on established case law such as Abercrombie & Fitch Italia (C‑143/16, EU:C:2017:566), ‘workers’ include those serving a traineeship or periods of apprenticeship in an occupation that may be regarded as practical preparation related to the actual pursuit of the occupation in question. [Para. 31].

Having further established that the case falls within the scope of Directive 2000/78 [paras 34-36], the CJEU concluded that according to Article 5 of the Directive, in order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation must be provided. Therefore, the employer must take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training. [Para. 39].

On this basis, the CJEU found that the applicant should be assigned to another position for which he or she has the necessary competence, capability and availability, unless such measures would impose a disproportionate burden on the employer.