As a preliminary comment, it should be observed that disabled employees who carry out their professional activity in a normal working environment are considered as full-fledged employees and thus benefit from the same rights as any employee. Moreover, and in any event, an employee is never obliged to disclose his/her disability situation to his/her employer.
However, disabled employees constitute a particularly fragile population which has been the subject of great attention with a view to ensuring their professional integration within the workplace. In particular, any company with more than 20 employees is under an obligation to employ disabled persons for up to 6% of its workforce (although this obligation may also be complied with through the payment of a specific contribution). Similarly, French employment law makes provisions for specific measures with the goal of granting additional rights and protection to disabled employees (such as reinforced medical follow-up, doubling of the notice period in certain situations of dismissal, etc.).
Still, one of the strongest means of protecting disabled workers lies in the general principle of non-discrimination which prohibits any employer from treating an employee differently on the basis of certain grounds including, inter alia, the employee’s health situation and disability. However, this principle still allows for differences of treatment provided that such differences are justified by an essential and direct professional requirement, as long as the objective is legitimate and the requirement is proportional. French employment law also specifies that differences of treatment based on the employee’s incapacity or unfitness recognized by the occupational health physician are not considered to constitute discrimination as long as such differences are objective, necessary and appropriate.
In addition to the general principle of non-discrimination, the Labour code provides that the employer must take measures, appropriate to the needs of a given situation, in order to enable disabled employees to:
– have access to, or retain employment corresponding to their qualification, and to participate in or advance in such employment;
– receive appropriate training adapted to their needs.
These measures concern in particular the adaptation of equipment and tools as well as work stations (including the necessary support and individual equipment for the concerned employees), and access to the workplace. Similarly, any disabled employee may, upon request, benefit from individualised working hour arrangements. Nevertheless, the employer is considered as being discharged from this obligation if it would create a disproportionate burden on the business. In this respect, public subsidies that may be granted to the employer in relation to the employment of disabled persons will be taken into account for the purpose of assessing the extent of such burden.
The underlying logic of such provisions is that, in order to ensure compliance with the principle of equal treatment for persons with disabilities, reasonable adjustment should be made within the workplace. Therefore, these positive measures adopted by the employer to promote the equality of treatment for those persons are regarded by law as not being acts of discrimination. On the contrary, the Labor code states that it is the simple fact that an an employer refuses to take appropriate measures which could constitute discrimination.
In this context, any employer which does not comply with such obligations and thus discriminates against an employee on the basis of his/her disability faces the same sanctions as any other type of discrimination, i.e. in particular criminal sanctions (up to 3 years’ imprisonment and a fine of 45,000€ for an individual and 225,000€ for a legal entity) as well as the nullity of any decision made in violation of such principle.
