Published in the Irish Employment Law Journal 2025, volume 22 Issue 3, pgs 69-71
The Court of Justice of the European Union (the “CJEU”) delivered judgment on 11 September 2025 in the case of G.L. v AB SpA (C-38/24), which concerned a preliminary ruling request from the Supreme Court of Cassation, Italy. The request for preliminary ruling concerned the interpretation of Council Directive 2000/78/EC (the “Directive”) of 27 November 2000, establishing a general framework for equal treatment in employment and occupation. The judgment confirmed that the Directive prohibits both direct and indirect discrimination by association with a person who has a disability and that the obligation to provide reasonable accommodation extends to the caregiver, despite the fact that they do not have a disability themselves.
G.L. was employed by the company AB as a “station operator” where she was responsible for monitoring and supervising an underground station. G.L. was also the caregiver of her severely disabled child, and in that capacity, she requested her employer to assign her, on a stable basis, to a fixed morning shift for her duties. Alternatively, she requested that she be given lower-level duties to enable her to follow a care programme at a fixed time in the afternoon for her minor child, who lived with her, and was severely disabled, whilst continuing to pursue her professional activity on an equal basis with other employees.
AB did not grant her request but did provide her with some accommodation on a temporary basis, assigning her a fixed workplace with a preferential schedule as compared to other station operators. G.L. brought an action before the District Court, Rome, Italy, seeking a declaration that her employer’s behaviour towards her was discriminatory.
She requested that her employer be ordered to assign her definitively to a shift with fixed hours, between 8:30 and 15:00, or, in any event, one compatible with her child’s needs, to adopt a plan to eliminate the discrimination, and to pay her compensation for damages. G.L. claimed that AB had treated her differently from her colleagues, who, for health reasons, were considered to be temporarily or permanently unfit to perform their work in the normal manner.
Whereas those colleagues were temporarily assigned to other tasks pending retraining in different duties, being assigned to a subsidised or “assisted” service with a fixed workplace, she was not given that opportunity since, in her case, the assessment of fitness was made on the basis not of the health status of her child, but on her own health status.
G.L. claimed that AB adopted measures of a temporary and nondefinitive nature over an unreasonably long period of time, which was not sufficient. Furthermore, she claimed that AB failed to take any action in respect of her request to be potentially assigned, if necessary, to lower-level duties in order to resolve her difficulties.
The District Court dismissed G.L.’s action on the ground that she could not bring the action as she was not the disabled person. The Court of Appeal dismissed her case on its merits, finding that no discriminatory conduct on the part of AB had been established and that, in any event, AB had provided reasonable accommodation. G.L. brought an appeal on a point of law to the Supreme Court of Cassation, claiming that she met the legal requirements for the protection of her right to nondiscrimination on grounds of disability in the workplace. She disputed that AB provided reasonable accommodation, which she was fully entitled to and that the temporary measures granted by AB did not rule out the alleged discrimination. After she brought her appeal, she was dismissed on 10 October 2022.
The Supreme Court noted that Italian law at the time of the main proceedings did not provide for general protection against discrimination and harassment in the workplace for caregivers. However, it noted the judgment of the CJEU in Coleman (C-303/06, EU:C:2008:415, 17 July 2008) provided that the family caregiver of a disabled person is entitled to protection against direct discrimination on the ground of disability in the workplace.
Nevertheless, the Supreme Court did not know if this should also apply to indirect discrimination. It also noted that the Coleman judgment restricted the provision of reasonable accommodation to those with disabilities. Furthermore, since the Coleman judgment, the UN Convention on the Rights of Persons with Disabilities (the “UN Convention”) and the Charter of Fundamental Rights of the European Union (the “Charter”) both came into force. Therefore, the Supreme Court decided to stay the proceedings and refer the following questions to the CJEU:
“1) Should European Union law be interpreted- where applicable on the basis also of the [UN Convention] – as meaning that a family caregiver of a severely disabled child who claims to have suffered indirect discrimination in an employment context as a result of the care provided by that individual is entitled to rely on the anti-discrimination protection that would be afforded to that disabled person, if they were the worker, by [the Directive]?
2) If the answer to [the first question] is in the affirmative, should European Union law be interpreted – where applicable on the basis also of the [UN Convention] – as meaning that it is incumbent on the employer of the abovementioned caregiver to make reasonable accommodation to guarantee compliance – also in favour of that caregiver – with the principle of equal treatment in relation to other workers, modelled on the provisions laid down in relation to persons with disabilities in Article 5 of [the Directive]?
3) If the answer to [the first and/or second questions] is in the affirmative, should European Union law be interpreted – where applicable also on the basis of the [UN Convention] – as meaning that the relevant caregiver for the purposes of [the Directive], should be understood as any person, whether a member of the family or a de facto cohabiting partner, who cares in a domestic setting, even informally, free of charge, for a significant number of hours, on an exclusive, continuous and long-term basis, for a person who, by reason of their severe disability, is not absolutely self-sufficient in the performance of the daily activities of living, or should European Union law be interpreted as meaning that the definition of the caregiver in question is broader or even narrower than as stated above?”
The CJEU followed the Opinion of Advocate General Rantos. It held that the UN Convention and the Charter are an integral part of the EU legal order and their provisions may be relied upon in order to interpret the provisions of the Directive.
The CJEU referred to the Coleman judgment in which it was held that direct discrimination by association on the ground of disability is prohibited by the Directive. Where an employer treats an employee who does not himself/herself have a disability less favourably than another employee is, has been or would be treated in a comparable situation, and it is established that the less favourable treatment of that employee is based on the disability of his/her child, whose care is provided primarily by that employee, such treatment is contrary to the prohibition of direct discrimination under the Directive.
It stated that an interpretation of the Directive limiting its application only to persons with disabilities is liable to deprive that Directive of an important element of its effectiveness and to reduce the protection which it is intended to guarantee.
The CJEU also referred to the decision in CHEZ Razpredelenie Bulgaria (C-83/14, EU:C:2015:480) in respect of Directive 2000/43, which was drafted in similar terms to the Directive but in respect of “race or ethnic origin” rather than “disability”. In that case, all the electricity meters were placed on pylons forming part of the overhead electricity supply network at a height of between six and seven metres in an urban district mainly inhabited by those of Roma origin. Such meters were placed at a height of less than two metres in the other districts.
The CJEU held in that case that the principle of equal treatment to which that directive refers applies not to a particular category of person but by reference to the ground in art.1, here being race or ethnic group. Therefore, those who suffered the less favourable treatment on that ground but were not of a Roma origin still benefited from the protection of that directive. Therefore, the court expressly held that indirect discrimination by association fell within the scope of Directive 2000/43.
The CJEU referred to the Charter and, in particular, arts 21, 24 and 26. Article 21(1) of the Charter, prohibits “any discrimination” based, inter alia, on disability. Article 24 of the Charter provides that children are to have the right to such protection and care as is necessary for their well-being and that in all actions relating to children, the child’s best interests must be a primary consideration. Article 26 provides that the European Union is to recognise and respect the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.
Reference was also made to the decision of the European Court of Human Rights in Guberina v. Croatia (22 March 2016 CE:ECHR:2016:0322JUD002368213) which held that discriminatory treatment suffered by a person on account of the disability of his or her child, with whom he or she has close personal links and for whom he or she provides care, is a form of disability-based discrimination covered by art.14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, without distinction as to whether that discrimination was direct or indirect.
The CJEU stated that the UN Convention provides that the concept of “discrimination on the basis of disability” covers “any” distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms and that concept includes “all forms of discrimination” including denial of reasonable accommodation.
In light of the above, the CJEU answered the first question in the affirmative stating that the Directive read in light of arts 21, 24 and 26 of the Charter and arts 2, 5 and 7 of the Convention, must be interpreted as meaning that the prohibition of indirect discrimination on grounds of disability applies to an employee who does not himself or herself have a disability but who is subject to such discrimination because of the assistance that that person provides to his or her child who has a disability, which enables that child to receive the primary care required by virtue of his or her condition.
Regarding the second question, the CJEU referred to the above-mentioned arts 24 and 26 of the Charter. It also had regard to art.2 of the Convention, which expressly provides that the concept of discrimination on the basis of disability includes all forms of discrimination, “including denial of reasonable accommodation”. In accordance with the fourth paragraph of that article, “reasonable accommodation” means:
“necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.”
The court referred to point 53 of the Advocate General’s Opinion in which he stated that “reasonable accommodation”, as defined in art.2, is not restricted to the needs of persons with disabilities in the workplace. Accordingly, that accommodation must, where necessary, also be provided to a worker who provides the assistance which enables that person with a disability to receive the primary care required by virtue of his or her condition.
Article 7(1) of the Convention further provides that the States Parties are to take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children. Point (x) of the Preamble to the Convention refers to the need to assist the families of persons with disabilities to enable families themselves to contribute towards the full and equal enjoyment of the rights of persons with disabilities.
It follows that the employer must adapt the working conditions of the employee who is providing the assistance for his or her child with a disability. As regards the type of reasonable accommodation that the employer of a caregiver is required to make, the CJEU held that art.5 of the Directive should be read in light of art.2 of the Convention, which prescribes a broad definition of the concept of “reasonable accommodation”. It held that the reduction of working time may constitute one of the measures of accommodation and/or the reassignment to another job may constitute such a measure.
However, the CJEU confirmed that this does not oblige an employer to take measures that would impose a disproportionate burden on it. While the CJEU held that it is for the national court to determine whether or not a measure is disproportionate, it stated that account should be taken of the financial costs entailed, the scale and financial resources of the organisation and the possibility of obtaining public funding or any other assistance. In addition, the possibility of assigning a person with a disability to another job is only available where there is at least one vacancy that the worker in question is capable of holding.
The answer to the second question is that the Directive, in particular art.5, read in light of arts 24 and 26 of the Charter and art.2 and 7(1) of the Convention must be interpreted as meaning that an employer is required, in order to ensure compliance with the principle of equal treatment of workers and the prohibition of indirect discrimination referred to in the Directive, to make reasonable accommodation, within the meaning of art.5, in respect of an employee who does not himself or herself have a disability but who provides, to his or her child who has a disability, the assistance which enables that child to receive the primary care required by virtue to his or her condition, provided that that accommodation does not impose an unreasonable burden on the employer.
Finally, the CJEU ruled that question number three, as asked by the referring court, was inadmissible. The concept of a caregiver is not provided for in the Directive, and the CJEU noted it appears to fall under national law. The CJEU also noted that the referring court did not provide an explanation as to the link between the third question concerning the concept of a “caregiver” and the dispute in the main proceedings.
The Directive was transposed in Ireland by the Employment Equality Acts. While this CJEU decision broadens the protection for caregivers and the concept of discrimination by association, it raises a number of questions. For example, will the sixmonth qualifying period under the Code of Practice for Employers and Employees on the Right to Request Flexible Working be deemed to be discriminatory, as employees with disabilities do not have to wait six months to get flexible working hours as a reasonable accommodation, where necessary and not disproportionate. Also, there does not seem to be a de minimis level of disability for the child or person for whom the employee provides care.
Will employers be able to seek medical evidence in respect of the person with the disability? It is also not clear as to the definition of a “caregiver”. Furthermore, the protection of discrimination by association is very broad, only requiring the person to have suffered less favourable treatment due to one of the protected grounds but not requiring the person to come within the definition of such a ground. It will be interesting to see if this decision will result in an increase in claims under the Employment Equality Acts on the ground of discrimination by association, including refusal of remote working applications, and if so, what level of awards will be granted.
Anne O’Connell Solicitors
19-22 Lower Baggot Street
Dublin 2.
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