In Daouidi v Bootes Plus SL and ors, Daoudi (D) had an accident at work, dislocating his elbow. He could not provide a return date and was dismissed six weeks after the accident. D lodged a claim for disability discrimination. D’s claim was heard by a Spanish court six months after the accident. He still had a plaster cast on his arm and there was no certainty about the future medical position. The court acknowledged that the balance of the evidence suggested that the actual reason for his dismissal was his temporary incapacity for work. But it then asked the ECJ, whether, in such circumstances, D could be classified as a disabled for the purposes of the Equal Treatment Directive taking into account that the length of incapacity due to his impairment was uncertain.

The ECJ confirmed that the concept of ‘disability’ within the meaning of the Equal Treatment Directive means a limitation resulting from a ‘long-term’ physical, mental or psychological impairment which hinders the participation of the person concerned in professional life on an equal basis with other workers.

The ECJ then went on to hold that the fact that a person finds himself or herself in a situation of temporary incapacity for work, for an indeterminate amount of time, does not mean in itself that the impairment is ‘long-term’. However, the evidence that may make 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 is not one that has a short-term prognosis or that that incapacity is likely to be significantly prolonged before recovery. That decision must be based on all of the objective evidence available, including documentation relating to the worker’s current medical situation.

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