Recent CJEU case law on ‘reasonable accommodation’ at work: towards the recognition of a new discrimination form

Recent developments of Tartu Vangla and Komisia CJEU decisions (2021) are scrutinised in relation to the direct discrimination test, occupational requirement justification and related limitations on automatic employment bars. Incapability to fulfil the original position is debated in the light of the reasonable accommodation duty. As a contrast, in the latest HR Rail judgment (2022) the existence of incapability is not disputed, but the first independent CJEU test on denial of reasonable accommodation led to a cautious paradigm shift. In addition, the compulsory reassignment of incapable workers with a disability poses a challenge for national labour laws and reasonable accommodation regulations.

The adoption of the Employment Equality Directive (2000) preceded the ratification of the Convention on the Rights of Persons with Disabilities (CRPD) (2010); therefore, the Court of Justice of the European Union (CJEU) had the primary role to approximate EU (European Union) law interpretation of the various concepts within reasonable accommodation to the CRPD.In recent years, the Court has passed three judgments with new statements, which will be the focus of this article.To assess the novelties of recent decisions, beforehand the EU law framework (Sect.1) and former CJEU case law on reasonable accommodation (Sect.2) will be addressed.
The new developments in the Tartu Vangla and Komisia decisions (Sect.3) will be scrutinised against this legal background in relation to the applied direct discrimination test, occupational requirement justification and the related limitations on automatic employment bars.Incapability to fulfil the original position is debated in these cases in the light of the reasonable accommodation duty through the test on direct discrimination.As a contrast, in HR Rail (Sect.4) incapability of the worker is not debated, but the very first independent CJEU test on denial of reasonable accommodation leads to a shift in paradigm.As a consequence, compulsory reassignment of incapable workers with a disability poses a challenge for national labour laws. 1

Provisions in the employment equality directive
The definition of reasonable accommodation at work was introduced in EU law by Article 5 of the Employment Equality Directive 2 (Directive): "employers shall 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, unless such measures would impose a disproportionate burden on the employer."The fundamental difference between the Directive (2000) and the CRPD (2008), 3 that the former does not define the denial of reasonable accommodation as a sui generis form 4 of discrimination.It is, therefore, left to the CJEU to clarify, what EU provisions (test) shall be applied to this duty.
Denial of reasonable accommodation is not discrimination when it would be a disproportionate burden on the employer.The burden is not disproportionate when "it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned". 5To determine disproportionate burden, account should be taken in particular of the financial and other costs entailed, the scale and financial resources of the undertaking and the possibility of obtaining public funding or any other assistance. 6The CRPD Committe also declared, that the financial cost of a requested accommodation is a relevant factor, but the Directive pays greater attention to the cost factor. 7The assessment of non-financial aspects was not explicitly guided by the Directive, but the CRPD Committee's jurisdiction suggests that the interests of the parties must be balanced. 8

Interpretation consistently with CRPD
The Directive must be interpreted in the light of the EU Charter of Fundamental Rights (CFR) and the CRPD.CFR contains several provisions in relation to disability, 9 in particular Article 26 on integration of persons with disabilities.The CRPD has been ratified by the EU in 2010, so this mixed agreement is binding on EU institutions and Member States. 10It is an 'integral part of the European Union legal order', 11 and as such it is inferior to the Treaties, but superior to secondary EU law.However, it is a part of the EU fundamental rights system and could even establish itself as equivalent to EU primary law. 12herefore, the Directive must, as far as possible, be 'interpreted in a manner that is consistent with the CRPD'. 13If there are more than one possible interpretation, preference should be given to the one consistent with the Convention, 14 even though the CRPD does not have direct effect. 15Overall, EU ratification established a clear obligation to take it into account in interpreting EU primary and secondary law, 16 and the concept of disability is the archetypal example of this consistent interpretation. 17So, the definition of reasonable accommodation must be applied together with the other anti-discrimination provisions of the Directive, and these secondary law provisions must be interpreted in the light of the relevant CRF and CRPD articles.This legal framework has been improved by CJEU case law in the last two decades, what will be the topic of the next chapter.

Key issues in former CJEU case law
The CJEU has developed an evolving body of case law on the following issues of the reasonable accommodation obligation: applicable test for denial of reasonable accommodation, notions of 'disability' and 'reasonable accommodation'.In this chapter, I will summarise former case law on these concepts.

Two potential judicial tests: independent or exemption
EU law and the CRPD agrees on that all private and public employers must provide reasonable accommodation, 18 but they contradict on the applicable test.The Directive leaves it open whether failure to provide reasonable accommodation is an independent form of discrimination, or it is an exemption clause within the direct or indirect discrimination tests.While reasonable accommodation must be provided in EU law "in order to guarantee compliance with the principle of equal treatment", 19 its other mention considers reasonable accommodation as an exemption clause within the definition of indirect discrimination. 20Contrarily, the CRPD classifies denial of reasonable accommodation as a third and separate form of discrimination. 21Therefore, a consistent interpretation would entail a similar judicial practice in EU law.
As a result, there are two potential tests.The first, CRPD conform interpretation is based on an 'independent' reasonable accommodation test.If the following conditions of Article 5 are met, discrimination could be stated in EU law, irrespective of the conditions of direct and indirect discrimination: denial of appropriate measures by the employer, which are necessary to enable a person with a disability to have access to, participate in, or advance in employment.In addition, proving disproportionate burden on the employer is a potential justification. 22The purposive approach may help this proportionality review by investigating if the measure enables a disabled person to exercise her rights 'on an equal basis with others'. 23he second possible interpretation perceives reasonable accommodation as a (satellite) part of the direct and indirect discrimination EU tests, so it is simply an extra exemption clause (exculpatio), in addition to objective justification and occupational requirement defence. 24In this 'exemption test', first direct or indirect discrimination is scrutinized: whether unequal treatment is directly or indirectly based on disability.
If indirect discrimination is stated, objective justification and the provision of reasonable accommodation may lead to an exemption from discrimination.It may be a question here, if these are two independent tests, as suggested by the text of Article 2(2), or reasonable accommodation is merely a part of the objective justification's proportionality test, as it is often perceived in CJEU case law.It is also unclear, whether, for instance, termination of employment is lawful, when some reasonable accommodation measure was provided, but the employee was still dismissed. 25The 18 Case C-312/11 Commission v Italy EU:C: 2013:446. 19Art. 5 of the Directive. 20Art.2(2)b) (ii) of the Directive. 21Waddington and Broderick [15], p. 69; Conte [4], p. 23. 22Ferri and Lawson [9], pp.47-48, 52. 23In accordance with Art. 2 of CRPD. 24In the same provision: Directive, Art.2(2)b) (i). 25 Vegter [11].appropriateness of the measure may be debated in such cases.It must be mentioned here that the Court investigated reasonable accommodation only within the indirect discrimination test before 2021 (particularly dismissals for absenteeism).
At the same time, the applicable test of reasonable accommodation remains unclear in case of direct discrimination in the Directive,26 but the classic exemption of occupational requirement may be applied.While the Directive clearly defines reasonable accommodation as an exemption clause in indirect discrimination, the same is missing in relation to direct discrimination.
Classification may seem to be a theoretical question, since the outcome might be similar in both (independent and exemption) tests, as the same provisions are applied.However, Lisa Waddington identified several advantages of the separate reasonable accommodation test, such as raising awareness, recognising seriousness of the duty, improving burden of proof position, sanctions and remedies, 27 and ensuring effective national enforcement.

Case law on the applicable test (before 2021)
The CJEU has paid very little attention to the applicable test, and particularly failed to define the denial of reasonable accommodation as a form of discrimination. 28First, the Chacon Navas decision's remark did not bring us closer to the choice of interpretation, as discrimination must be decided "in the light of the obligation to provide reasonable accommodation for people with disabilities", though it may seem to be closer to the exemption model. 29The DW v Nobel Plastiques Ibérica 30 decision more openly supported the interpretation as an exemption clause, when stated, that selection criteria for dismissal may constitute indirect discrimination, unless the employer has provided the worker with the reasonable accommodation needed to guarantee compliance with the principle of equal treatment in relation to persons with disabilities.As a contrast, the Ruiz Conejero judgment used the proportionality test without considering the reasonable accommodation duty. 31K Danmark marked a cautious change by stating, that the Directive is violated, if the absences of the worker and related dismissal are attributable to the employer's failure to adopt appropriate accommodation measures. 32The Court's reasoning may suggest that indirect discrimination could have been avoided by a reasonable accommodation measure, thus, indirect discrimination was a consequence of its denial.Although, it was the first case, the Court based the violation of equal treatment on the breach of the reasonable accommodation duty, as the cause of the dismissal, but avoided to explain the test leading to this conclusion.
Overall, the scarce statements of the Court mostly support the interpretation of Article 5 as an exemption clause within indirect discrimination.The CRPD has not influenced the CJEU on this matter, unlike on the notion of disability, which reflects its 'selective influence' on case law.

Concept of 'disability'
The definition of 'disability' comes before the assessment of the appropriate measures, as they are the consequence, not the constituent element, of the concept of 'disability'. 33As the Directive does not define 'disability', it is left for the Court to clarify this EU notion, and it has become the central issue in case law on reasonable accommodation.The Chacon Navas judgment stated first that the concept of 'disability' must be given an autonomous and uniform EU law interpretation (by case law). 34In Chacon Navas (2006), 'disability' was understood, before EU ratification of the CRPD (2010), as "a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life" if the limitation of a person's capacity 35 is probable to last for a long time.
After ratification of the CRPD, the CJEU modified the initial medical definition of disability in Chacón Navas, to adopt a more expansive notion inspired by the social model of disability. 36In accordance with Article 1 of CRPD, 37 hindrance to participation in society arises from 'interaction with various barriers', thus, there might be certain circumstances in which the definition in Chacón Navas falls short of the UN Convention. 38According to the definition in HK Danmark, Z. v A and DW , the concept of 'disability' must be understood as a "limitation of capacity which results in particular from long-term physical, mental or psychological impairments which, in interaction with various barriers, may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers". 39he concept of 'disability' refers not only to the impossibility, but also to a hindrance to the exercise of a professional activity. 40However, the limitation must hinder that person's full and effective participation in professional life. 41s a result of these decisions, the CJEU definition has been moving towards the CRPD's social model of disability, but with a limited, work ability focus.This process is not without flaws, since the CJEU uses the social model of disability in its rhetoric, but not so much in its practice, and the EU concept is still far from being clear. 42

Meaning of reasonable accommodation
The definition of 'reasonable accommodation' clarifies the substance and extent of the measures which the employer must take in accordance with Article 5.This concept involves three pillars: accommodation measures, reasonableness, and proportionate burden.

Possible accommodation measures
Accommodation in EU law is an adaptation of normal procedures, processes or infrastructure for workers with a disability to have access to, participate in, or advance in employment, based on an individual assessment. 43As for the legally possible appropriate accommodation measures, Recital 20 contains a list of "effective and practical measures to adapt the workplace to the disability, i.e., adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources". 44Since this list is non-exhaustive, thus, any other physical, organisational, educational 45 measure may be considered by the Court as appropriate, which 'enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training'. 46easonable accommodation must be interpreted consistently with Article 2 of the CRPD, which prescribes a broad definition of this concept: "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".In CJEU case law, reasonable accommodation is understood as referring to the "elimination of the various barriers that hinder the full and effective participation of persons with disabilities in professional life on an equal basis with other workers". 47Based on this CRPD conform principle, the Court accepted, for instance, an organisational measure (reduction in working hours) as an accommodation measure, when the reduction makes it possible for the worker to continue in his employment. 48

Reasonableness as effectiveness
An accommodation is reasonable if it achieves its purpose and is tailored to meet the requirements of the person with a disability. 49In this CRPD framework, reasonableness of an accommodation is not to be assessed regarding costs, as the cost issue 43 Waddington [12], p. 320. 44Recital 20 of the Directive. 45HK Danmark, para 49. 46Art. 5 of the Directive. 47HK Danmark, para 53-54; Commission v Italy, para 59. 48HK Danmark, para 64. 49Committee on the Rights of Persons with Disabilities (2018), General Comment No. 6 on equality and non-discrimination, UN Doc.CRPD/C/GC/6, para.25(a).falls under the disproportionate burden defence, 50 but rather to the effectiveness, and thereby the appropriateness, of the measure to achieve its objective. 51Contrarily, in HK Danmark 'reasonable' was meant by the CJEU, that the measure does not constitute a disproportionate burden, 52 in that it does not impose excessive difficulties or costs on the employer. 53Thus, CJEU case law is not in line with the CRPD notion of reasonableness.

Disproportionate burden: limited guidance
As a contrast to 'appropriate measures', the Court has not really offered additional guidance (beyond citing Recital 21 54 ) on what burden might be considered as disproportionate, although recital is quite unclear on several relevant questions, such as the evaluation of excessive cost and non-financial considerations. 55In HK Danmark it was left to the national court to assess whether the measure constitutes a disproportionate burden on the employer.The Court also remarked that the employer advertised later a part-time position for the post, and public assistance was available as well, which may be important facts in the assessment. 56Therefore, in practice, national law has been the primary source of the criteria on the assessment of disproportionate burden with very limited guidance from CJEU case law. 57The CRPD is not really helpful either, as the CRDP Committee also leaves this task to national law. 58

New wave of case law (2021-2022)
Three decisions brought about important new developments on reasonable accommodation in a short time.First, Tartu Vangla 59 and Komisia 60 (2021) looked at reasonable accommodation as an element of proportionality of the occupational requirement justification of direct discrimination.Second, in HR Rail 61 (2022), the Court put aside the direct discrimination test, and based the decision solely on the reasonable accommodation duty.The following chapters will investigate the novelties of these decisions on the applicable test, appropriate measures and disproportionate burden.

Employment prohibition due to auditory impediment
In Estonia, the Tartu prison dismissed an employee for non-compliance with the auditory acuity requirements for prison officers.As a result, the worker became permanently incapable, in law, of performing the essential functions of the post due to an auditory impediment (existed since his childhood).In practice, he would have been capable to continue performing (after 15 years, the same) work, if the same legal measure (use of hearing aid) had been applied as for visual impairment (use of contact lenses, glasses).Prison officers are not prohibited from wearing a hearing aid at work, but their hearing must be tested without the use of such a device.A prison officer's natural level of auditory acuity should be sufficient, without a medical device, to ensure safety and communication.
The question was whether the Directive, based on the definitions in Article 2(2) and the occupational reequipment justification in Article 4(1), precludes an absolute bar to the continued employment of a prison officer whose auditory acuity does not meet the minimum legal standards and the assessment does not allow the use of corrective aids. 62Remarkably, the national courts did not mention reasonable accommodation in the proceedings and the question.

Direct discrimination and occupational requirement justification
As an outset, the Court identified two (classic) tests regarding the assessment of a difference of treatment, direct and indirect discrimination, thus, reasonable accommodation seems to be understood as a satellite element of this binary system, instead of the basis of an independent (sui generis) obligation. 63The decision then stated direct discrimination on disability, as the existence of disability was not debated, and a difference of treatment was based directly on this ground.
After direct discrimination was found, the 'occupational requirement' justification clause was taken to front.The fact that auditory acuity must satisfy minimum standards, may be regarded as a 'genuine and determining occupational requirement', by the nature of a prison officer's duties and of the context in which they are carried out.The concern to ensure the 'operational capacity and proper functioning of the prison' constitutes a legitimate objective, as this measure seeks to preserve the safety of persons and public order by ensuring that prison officers are physically capable of performing all the tasks. 64his justification, however, must be proportionate: the requirement is appropriate for attaining the legitimate objectives and does not go beyond what is necessary to attain them.Reasonable accommodation came into play as late as the very last stage 62 Tartu Vangla, para 25. 63 Tartu Vangla, para 28. 64Tartu Vangla, paras 35, 37, 41.  of checking necessity.As regards necessity, the absolute medical impediment to the exercise of the duties does not allow for an individual assessment of the ability to perform the essential functions of the job.More specifically, the debated law did not allow the employer to conduct, prior to dismissal, checks in order to ascertain whether it was possible to take appropriate measures. 65ased on the concept of appropriate measures in former case law, the Court mentions two potential appropriate measures: hearing aid and assignment to another post.As a whole, such a law, 'where appropriate after the adoption of reasonable accommodation measures', goes beyond what is necessary to attain its legitimate objectives.66So, denial of reasonable accommodation was an important factor, when the Court declared the lack of necessity within the framework of the proportionality test.While in former case law indirect discrimination was at stake, in this judgment direct discrimination provided the classic framework for the proportionality check, however, the legal logic was similar to former decisions involving indirect discrimination.

Complete exclusion from work
The worker possessed reduced capacity to work due to sight loss since 1976.She was admitted and assigned as a juror by lot in a Chamber of the Sofia Court in 2014, but she was not called to take part in proceedings, and vainly requested an assignment to another judge.Finally, she lodged a complaint with the Commission for Protection against Discrimination, claiming that she had been treated less favourably based on her disability.From 2016, she had participated in a series of hearings in criminal proceedings, when a legislative reform introduced the electronic allocation of jurors.So, the facts are different from Tartu Vangla, since the work relationship was not automatically banned, but performing work and earn an income was rendered in effect impossible.
The national court asked whether EU law totally excludes a blind person from any opportunity to perform duties as a juror in criminal proceedings, and if it is justified by the occupational requirement.67

Justification of direct discrimination again, but with slight novelties
It was not disputed in this case either (like in Tartu Vangla), that this case falls under the scope of the Directive, and the person, having the EU law status of a worker, 68 possesses a disability.The Court stated again a difference in treatment directly based on disability and went on to the occupational requirement justification.So, the line of reasoning is very similar to the test described in Tartu Vangla.By reason of the nature of a juror's duties in criminal proceedings and the context in which they are carried out, which may in certain cases involve examination and assessment of visual evidence, vision may be regarded as a 'genuine and determining occupational requirement'.The principle of immediacy and the direct assessment of evidence was accepted as a legitimate aim.
"As concerns that proportionality, regard must be had to" the reasonable accommodation duty. 69Therefore, the denial of this obligation is deemed to be a part of the proportionality, necessity test. 70The conclusion was in effect the same as in Tartu Vangla, as justification of direct discrimination failed due to the lack of necessity, and denial of reasonable accommodation was evaluated within this necessity test. 71owever, the reasoning also contains some new elements, such as references to Art. 26 of CFR and Art.5(3) of CRPD, which shows that CRPD provisions are becoming a decisive guide for the CJEU. 72

New EU law limits on employment bars
Indirect discrimination seems to be more common in this field since there is often proximity between avoiding indirect discrimination and providing accommodation. 73owever, in Tartu Vangla and Komisia direct discrimination was found, unlike in former CJEU cases, where disability was debated, which lead to the more complex test of indirect discrimination.As direct discrimination was the legal basis here, thus, denial of reasonable accommodation was examined within the narrowly interpreted proportionality test of the genuine and determining occupational requirement, at the necessity criteria of the measure.This new test may result from the lack of a reference in the Directive to the exact role of the reasonable accommodation test in case of direct discrimination.
It is a new limitation on termination of employment, that the automatic legal bar (Tartu Vangla), or the complete practical exclusion (Komisia) from work on disability violates EU law.However, in Komisa exclusion was found possible in certain cases based on an individual assessment of the worker's ability to perform work duties.The recognition that an individual's ability to work should be assessed in light of reasonable accommodation is in line with the Directive and the CRPD as well, 74 as the CRPD Committee has also emphasized the individual-oriented nature of this duty. 75n Tartu Vangla and Komisia, the main question was, when exactly a worker is incapable to perform the essential functions of the post.The Directive (Recital 17), 76 in accordance with the CRPD,77 includes a 'competence defence',78 as it "does not require the recruitment, promotion or maintenance in employment of a person who is not competent, capable and available to perform the essential functions of the post concerned, without prejudice to the obligation to provide reasonable accommodation".On this basis the Court declared that a worker is not 'incapable', if his/her incapability may be remedied by a (proportioned) reasonable accommodation measure.However, the Court should further clarify the meaning of a 'competent, capable and available' worker in order to precise the circumstances in which an individual is not competent to perform the post's essential functions. 79For instance, the loose notion of 'availability' should be interpreted very strictly, bearing in mind the strict CJEU indirect discrimination judgments on absenteeism (e.g., HK Danmark).
Overall, discrimination was stated in both decisions due to the lack of necessity in the light of the denial of reasonable accommodation.At the same time, there is a (potential) alternative test, which may come to the same conclusion on employment bars.In both judgments, the lack of reasonable accommodation to remedy incapability to work resulted in the end of work (relation), therefore, its denial could have been the sole basis of stating discrimination.To that end, in my view, the following conditions should be met: an appropriate, not disproportionate measure is necessary to ensure access to or maintain employment of a person with disability.This would mean an alternative proportionality check, but with reasonable accommodation in the focus.

Termination based on permanent incapability
HR Rail is a Belgian case involving dismissal of a worker who had become permanently incapable of performing the essential functions of the post.Unlike in Tartu Vangla and Komisia, it was not in question that the worker could no longer perform work for which he had originally been recruited, as a consequence of his heart condition that required the fitting of a pacemaker (undisputed disability).However, he could be employed in other posts, and was indeed assigned to a warehouseman's position, and was also promised personalised support in order to find a new job with the company.Despite this, he was finally dismissed due to the reason of incapability with a ban on recruitment for this post for five years.
The question was whether the EU law concept of 'reasonable accommodation' requires that a worker, incapable of performing the essential functions of the post, be assigned to another position for which he has the necessary competence, capability and availability.So, this was the very first case, where the national court directly targeted the interpretation of the reasonable accommodation duty, including the assessment of a reassignment measure in the light of the disproportionate burden defence.

Birth of an independent reasonable accommodation test
In HR Rail, incapability for work in the original post due to disability was not disputed, and the Court checked only the obligation to provide an appropriate reasonable accommodation measure (reassignment).It was not examined, whether the dismissal reasoned by incapability constitutes direct discrimination, and if it can be justified.
The Court started by stating that the case falls under the scope of the Directive and the applicant has a disability.As regards the nature of the reasonable accommodation duty the Court remarked, that "the employer is required to take appropriate measures, that is to say effective and practical measures, taking each individual situation into account, to enable a person with a disability to have access to, participate in, or advance in employment".Therefore, the followings seem to be the preconditions of a reasonable accommodation duty: appropriate (effective, practical, individualised) measures are necessary to enable a person with a disability to promote his/her employment.
This means the latent introduction of the long missing independent reasonable accommodation test in CJEU case law, as an effect of Article 2 of CRPD, which explicitly provides that disability discrimination includes denial of reasonable accommodation. 80Even if this is a disguised independent test, it is still a remarkable change in CJEU case law, which may be explained by certain reasons.First, the national court did not go into the traditional direct discrimination test but asked specifically for the interpretation of the reasonable accommodation obligation.Second, it was a direct discrimination case, where dismissal was based on incapability, and the underlying disability was not questioned.Third, the facts also drew attention to Article 5, as reasonable accommodation was provided and continuation was promised by the employer.
Unfortunately, this decision generates more questions than answers.The Court did not declare that denial of reasonable accommodation is a form of discrimination, but the violation of equal treatment was indeed based on the sole ground of its denial.Therefore, the Court should state, apply and clarify the independent test for the denial of reasonable accommodation as a form of discrimination.The text of the Directive does not exclude such an interpretation, but it is difficult to judge from the reasoning in HR Rail, whether the independent reasonable accommodation test shall be applied in the future in such cases.If so, what are the conditions of its violation, and how each element should be assessed.Particularly, it is a fundamental issue, if the independent test shall be applied only in direct, or also in indirect discrimination cases.Indirect discrimination is certainly the more complicated task due to Article 2(2) of the Directive specifying reasonable accommodation as a second exemption clause.However, the application of two distinct tests to direct and indirect discrimination would not make sense, bearing in mind their similar nature.Future CJEU decisions will hopefully clear this obscured picture.

Wider concept of appropriate measures
Beyond the independent test, the other novelty of the case is broadening and specifying potential accommodation measures.Appropriate measures, as a 'matter of prior-ity', should adapt the working environment for the person with a disability to remain in employment, such as reassignment to another position.Where a worker becomes permanently incapable of remaining in her job because of a disability, reassignment to another job may constitute an appropriate reasonable accommodation measure. 81he CJEU stated, that the obligation to provide reasonable accommodation may require to maintain employment of an incapable person with a disability (unless disproportionate burden).Incapability was not debated in this case, but the exact meaning of what constitutes incapability to perform 'essential functions' of the post may be debated in other cases with discerning facts. 82his means, that national laws must introduce a general obligation for employers to reassign employees with a disability to another position for which she has the necessary competence, capability, unless that measure imposes a disproportionate burden on the employer.Remarkably, the competence defence in Recital 17 must be examined in the new (reassigned) post.We can add that the employment relationship may be terminated, if the employer concludes that no other position can reasonably be offered to the employee.
In the lack of specific EU law harmonisation obligations on termination of employment by notice, this judgment raises some questions on the form and contents of national implementation.Member States may comply with this newly established obligation in two ways, but both methods involve the amendment of the system of prohibitions and restrictions on employment termination.
First, it may be implemented by an explicit obligation of the employer to offer another post in such cases of incapability to continue employment.Second, this aim could be achieved by the corresponding, compulsorily followed judicial interpretation of the reasonable accommodation duty.Evidently, the disproportionate burden defence must be ensured in both implementation methods.The general legal obligation of reassignment seems to be more promising in continental legal systems, although, it is questionable, that national legislations will follow this path instead of leaving it to the courts.Besides, there are also some countries, where this obligation already exists (e.g., UK). 83The accommodation requirement applies to all aspects of the employment, consequently several similar measures may come to the Court to assess their appropriateness.These may also raise the question, if the general reasonable accommodation duty covers them, or specific labour law provisions are necessary.

New aspects of disproportionate burden assessment
Assessment of the employer's burden does not mean the application of the proportionality test (legitimate objective, appropriate and necessary), but rather balancing the interests of the employer and the employee, both in financial and organizational terms, and measure, whose interest is stronger. 84In the independent reasonable accommodation test this is a justification, but in the former CJEU decisions it was a 'justification of a justification'. 81HR Rail, para 41, 43. 82Daly and Whelan [5]. 83Daly and Whelan [5]. 84Bribosia and Rorive [3], p. 39.
Assessment of undue burden in Recital 21 is predominantly focused on the cost aspects, and the Court has been quite silent on what constitutes a disproportionate burden.HR Rail added some important aspects to this assessment.One factor which may be relevant, is that the worker was reassigned to another position after incapability for the original post.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 is capable of holding. 85Here, the Court provides guidance regarding not purely financial, but organisational measures.The burden is interpreted as proportionate, if the employer has already voluntarily introduced that measure, and has the practical opportunity to carry on with it.Such facts may suggest that the employers' interests are balanced with that of the employee with a disability.

Conclusion: a slowly, but steadily evolving concept
The Employment Equality Directive and the CRPD brought about a legal revolution in reasonable accommodation regulation by inserting this duty into antidiscrimination law.Since the Directive came first, EU law differs from the CRPD on several points.The CJEU was given the task and also the chance to approximate EU law to the CRPD on notions like 'disability' and 'appropriate reasonable accommodation measure'.The Court have made remarkable steps ahead through this 'CRPD consistent interpretation', although some flaws have remained, 86 and the employment focus is evidently unchanged.
The fundamental mismatch between EU law and the CRPD is that the Directive does not declare denial of reasonable accommodation as a separate from of discrimination, although this specific interpretation would have many advantages to promote practical implementation.Based on the unclear rules in the Directive, early CJEU judgments mostly supported the interpretation of reasonable accommodation as an exemption clause in indirect discrimination cases.The Court moved to the easier direction by looking at Article 5 as a part of the classic indirect discrimination test.
The new cases discussed the meaning of incapability in the light of reasonable accommodation measures (Tartu Vangla and Komisia), and the employer's accommodation obligations in case of incapability to continue work in the same post (HR Rail).The first two decisions considered the unjustified failure to make a reasonable accommodation as an element of direct discrimination justification.However, HR Rail marks a paradigm shift by giving legal preference to Article 5 over direct discrimination provisions, which strengthens the reasonable accommodation duty through several legal advantages.However, the reasoning leaves several questions behind on the applicable test, as the declaration of reasonable accommodation as a separate form of (indirect and/or direct) discrimination is still to be awaited.
Termination of employment by notice is an evident field of reasonable accommodation measures, since it is the ultima ratio of labour law with very extensive national judicial practice, but without EU law requirements.As the new decisions set standards regarding restrictions and prohibitions in employment termination, they may 85 HR Rail, para 48-49. 86See the mapping of these non-compliances: Anglmayer [1], p. 10-17.generate important amendments in statutory law and/or judicial interpretation.The CJEU should contribute to the slow process of this change by further clarifying the applicable provisions and related EU notions.Has the time come for the announced birth of a new discrimination form?
Funding Open access funding provided by Pázmány Péter Catholic University.

Declarations
Competing Interests The author declares no competing interests.
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