Disability or Illness? OGH Explains the Difference

Nov 10, 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified the difference between illness and disability. Illness is not in itself a ground for discrimination.

The plaintiff was employed by the defendant as a delivery driver. Due to a problem with her shoulder, she was no longer able to carry out any work above the height of her head. The plaintiff underwent shoulder surgery, followed by physiotherapy and sick leave as a result of her health problems. On the day of the operation, the defendant gave notice to terminate her employment.

The plaintiff claimed damages because the defendant had violated the Austrian Disability Employment Act (Behinderteneingestellungsgesetz, hereinafter BEinstG). Dismissing the plaintiff because of a shoulder problem would have constituted direct discrimination based on disability.

Direct discrimination against the claimant was unanimously denied by the lower courts. They found that the plaintiff was not dismissed for having a disability but for having taken significant sick leave.

The Supreme Court upheld the lower courts’ decision, referring in its comments to European Court of Justice (ECJ) case law.

According to Section 3 of the BEinstG, a disability is a functional impairment that makes it difficult to participate in working life. In addition, a disability must not be of a temporary nature, but must have existed for more than six months, calculated from the time of the discrimination (in this case the time of the dismissal). The question of whether a functional impairment and the resulting sick leave are to be regarded as a disability within the meaning of Section 3 of the BEinstG can only be assessed on the basis of the specific circumstances of the individual case.

The OGH’s conclusion was that, on the basis of the time of the discrimination, it could not be assumed that the shoulder problem was a disability within the meaning of Section 3 of the BEinstG. The sick leave, which essentially resulted from the healing process, could not be equated with the long-term effects on participation in working life required under national and EU law, as is the case with a disability.

The plaintiff is not entitled to damages because dismissal cannot be considered direct discrimination.

9 ObA 36/23v (28 June 2023)