Indirect discrimination and the Duty to Accommodate: Reframing the Boundaries of Directive 2000/78 in Bervidi and Pauni 1

Abstract

This paper examines the Court of Justice of the European Union's 2025 preliminary rulings in Bervidi (C-38/24) and Pauni (C-5/24) which interpret the Directive 2000/78. Bervidi considers indirect discrimination by association and the disabled person's caregiver's right to reasonable accommodation at work. The Court confirms that the duty of reasonable accommodation may apply to workers when such accommodation is necessary to ensure the effective care of a disabled person. This aligns with the UNCRPD's broad conception of discrimination, which encompasses the denial of accommodation and aims to safeguard the right of person with disability who requires special care. In Pauni, the Court considers whether national legislation imposing uniform maximum sick-leave limits constitutes indirect discrimination against disabled workers or whether such rules may be based on legitimate aims. The Court emphasises that while there may be legitimate aim for such rules, dismissing a disabled worker without assessing reasonable accommodation constitutes discrimination. Bervidi and Pauni reaffirm reasonable accommodation as a cornerstone of EU equality law and demonstrate the practical effectiveness of non-discrimination principles in working life.

Introduction

On 11 September 2025, the Court of Justice of the European Union (CJEU) delivered two significant preliminary rulings addressing indirect discrimination and the right to reasonable accommodation. Both judgments concerned the interpretation of The Employment Equality Directive 2000/78/EC. ² The Directive was interpreted in the light of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), in line with the CJEU's well-established case law since the Convention entered into force within the European Union.

The first of these rulings, Bervidi (C-38/24), ³ is the primary focus of this comment. It concerned indirect discrimination by association and the right of a non-disabled caregiver to reasonable accommodation. The second ruling, Pauni (C-5/24), ⁴ addressed indirect discrimination based on disability in the context of the dismissal of a worker pursuant to legislation governing lengthy sick leave, as well as the scope of the duty to provide reasonable accommodation. The judgment in Bervidi was handed down following a request for a preliminary ruling from the Italian Supreme Court of Cassation, while Pauni arose from a request by the District Court of Ravenna, Italy.

Factual and procedural background

The facts of Bervidi concerned a dispute between Ms G.L. and her employer, AB SpA. Ms G.L. was employed as a station operator by AB SpA. She had repeatedly requested to be permanently assigned to a position with fixed working hours in order to care for her minor child, who lived with her and had special needs arising from a disability. As a result of his condition, the child was required to follow a care programme at fixed times.

The employer, AB SpA, had granted certain accommodations, including assignment to a fixed workplace and a preferential working schedule compared with other employees in the same position. However, the employer refused Ms G.L.'s request for a permanently fixed morning shift, which she claimed was necessary as a reasonable accommodation enabling her to provide essential care for her child while remaining in employment.

In Pauni, which concerned indirect discrimination based on disability in the context of dismissal during sick leave and the duty of reasonable accommodation, the proceedings were initiated by P.M., who had been dismissed by her employer, S. Snc. Her dismissal was based on national legislation governing employers’ rights and obligations in cases of prolonged sick leave. That legislation provided for a uniform maximum number of days of sick leave per calendar year, either paid or unpaid, for all workers within the same sector of activity. P.M. argued that her dismissal was discriminatory on the ground that the legislation failed to take account of her disability.

Legal framework and interpretative context

The relevant provisions for both Bervidi and Pauni are Article 2 of Directive 2000/78/EC, which defines direct and indirect discrimination; and Article 5, which imposes a duty on employers to provide reasonable accommodation for persons with disabilities in order to enable participation in working life. ⁵ In accordance with settled case law, these provisions, when contested on the basis of disability, must be interpreted in conformity with the UNCRPD, to which the European Union is a party. ⁶ Since the entry into force of the UNCRPD in the EU legal order, the CJEU has consistently emphasised a substantive equality approach, requiring not merely formal equal treatment but adjustments designed to counter structural disadvantage linked to disability. ⁷

In line with the social definition of disability contained in the UNCRPD, according to which disability is not a fixed condition but arises from the interaction between impairments and environmental barriers that hinder participation, the CJEU has developed a functional understanding of disability. The focus lies on the interaction between an individual's impairment and the various barriers that may hinder full and effective participation in professional life on an equal basis with others.

In both Bervidi and Pauni, the CJEU, in accordance with its previous case law, highlighted the significance of the Charter of Fundamental Rights of the European Union (The Charter). In particular, Article 21 of the Charter lays down a general principle of non-discrimination, prohibiting any discrimination based, inter alia, on disability, of which Directive 2000/78 constitutes a specific expression within its field of application. Moreover, Article 26 of the Charter provides that the EU 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. ⁸ In Bervidi, the Court further referred to Article 24 of the Charter, which establishes the right of the child to such protection and care as is necessary for his or her well-being and requires that the child's best interests be a primary consideration in all actions relating to children. The CJEU also referred to Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECtHR) and its interpretation by the European Court of Human Rights (ECHR). ⁹

Bervidi and Pauni further consolidate the principle of non-discrimination by addressing situations in which apparently neutral employment rules on working time, or national legislation relating to sickness absence, may produce unfavourable treatment and therefore fall within the scope of Article 2(2)(b) of Directive 2000/78 as indirect discrimination. The judgments also examine whether, and under what conditions, the establishment of reasonable accommodation measures is required in order to counter such disadvantage and ensure effective equality in employment.

Indirect discrimination under Directive 2000/78

According to Article 2(2)(b) of Directive 2000/78, indirect discrimination occurs where an apparently neutral provision, criterion, or practice that places persons having a protected characteristic at a particular disadvantage compared with others, unless that provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. The CJEU has consistently held that this assessment must focus on the practical effects of the contested measure rather than its formal neutrality. ¹⁰

In Pauni, the allegedly discriminatory measure consisted of national legislation establishing a uniform maximum duration of sick leave, comprising a fixed period of paid leave followed by an additional unpaid period per calendar year for all workers in the same sector. Exceeding that maximum duration constituted a lawful ground for dismissal. Although formally neutral and applicable without distinction, such a rule may place workers with disabilities at a particular disadvantage, given that disability is more likely to entail longer or repeated periods of sickness absence.

The CJEU emphasised that unfavourable treatment on grounds of disability as such does not infringe Directive 2000/78 unless it amounts to discrimination within the meaning of Article 2. ¹¹ It clarified that the notion of ‘particular disadvantage’ in Article 2(2)(b) refers to situations involving a serious, obvious, and particularly significant inequality. ¹² The CJEU further observed—hypothetically and in abstract terms—that prolonged sick leave may per se reflect a social policy aimed at protection by taking account of needs arising from a worker's disability, noting that there is no general obligation to maintain employment unless it can be considered economically viable. Whether the contested measure pursues an objectively justified, legitimate, appropriate and proportionate aim is, however, a matter for the national court to determine. ¹³

In Bervidi, the CJEU addressed a more complex configuration of indirect discrimination. The claimant was not herself a person with a disability, but her working conditions were directly affected by caregiving responsibilities towards her disabled child. The CJEU accepted that an apparently neutral work organisation practice—specifically, the absence of permanently fixed working hours—could place workers who are primary caregivers of persons with disabilities at a particular disadvantage compared with other workers. That disadvantage did not stem from the caregiver's own characteristics, but from the close and unavoidable link between caregiving responsibilities and the needs arising from the child's disability. The central issue was therefore whether such indirect discrimination by association falls within the scope of Article 2(2)(b) of Directive 2000/78.

Discrimination by association and its limits

The recognition of indirect discrimination by association in Bervidi raises important doctrinal questions concerning the scope of protection under Directive 2000/78. While the Directive does not expressly refer to discrimination by association, such protection has formed a stable part of EU non-discrimination law since the judgment in Coleman. In that landmark case, the CJEU examined whether the Directive applied to the dismissal of an employee who was the primary carer of a child with particular care needs arising from a disability. The CJEU held, relying inter alia on the objective of the Directive to combat all forms of discrimination and on the principle of equal treatment, that the protection afforded does not relate to a specific category of persons but operates by reference to the prohibited grounds listed in Article 1. Consequently, where an employee is treated less favourably than comparable employees in a similar situation because he or she is the primary carer of a child with a disability, such treatment constitutes direct discrimination. ¹⁴

In Bervidi, the CJEU extended this reasoning to the field of indirect discrimination, adopting a purposive interpretation aligned with the objectives of Directive 2000/78 and the UNCRPD. ¹⁵ The careful assessment underpinning the finding of indirect discrimination by association was further supported by Article 14 of the European Convention on Human Rights, which establishes a minimum level of protection pursuant to Article 52(3) of the Charter and applies in conjunction with the rights and freedoms guaranteed by the Convention. The European Court of Human Rights has interpreted Article 14 ¹⁶ as encompassing discriminatory treatment suffered by a person on account of the disability of his or her child, with whom that person has close personal links and for whom he or she provides care, regardless of whether such discrimination takes the form of direct or indirect discrimination. ¹⁷

The CJEU also relied on several provisions of the UNCRPD, emphasising the Convention's strict prohibition of all discrimination on the basis of disability and its guarantee of equal and effective legal protection covering both individual and structural aspects of life. In particular, Article 2(3) of the UNCRPD, which includes the denial of reasonable accommodation within the definition of discrimination, reflects a broad and inclusive approach. The CJEU further stressed the special protection afforded to children with disabilities and the obligation to consider their situation in light of the child's best interests. This interpretation is consistent with the position of the Committee on the Rights of Persons with Disabilities, which has clarified that the obligation to prohibit discrimination on the basis of disability under Article 5(2) of the UNCRPD seeks to protect not only persons with disabilities themselves but also their associates, such as parents of children with disabilities, and expressly covers discrimination by association without limiting it to direct discrimination. ¹⁸

Levelling up: Reasonable accommodation

Reasonable accommodation occupies a central position in both Pauni and Bervidi. Article 5 of Directive 2000/78 obliges employers to take appropriate measures to enable persons with disabilities to have access to, participate in, or advance in employment, unless such measures would impose a disproportionate burden. These measures can be either individual or organisational. ¹⁹ The CJEU has consistently interpreted this obligation broadly, emphasising that what constitutes an appropriate adjustment depends on the circumstances of the individual case and on whether the measure is capable of removing barriers to participation and enabling professional life on an equal basis with others. In HK Danmark, the Court expressly held that appropriate organisational measures may include adjustments to working patterns, such as a reduction of working hours. ²⁰

In Pauni, the CJEU reiterated that reasonable accommodation may encompass measures related to the organisation of work, including adjustments to working hours, tasks, or leave arrangements. It acknowledged that legislation governing lengthy sick leave may, in principle, pursue a legitimate aim related to ensuring a worker's ability and availability to perform professional duties, provided that it is limited to what is necessary. ²¹ However, the CJEU also stressed that legislation allowing for the dismissal of a disabled worker following prolonged sick leave may undermine the effectiveness of Article 5 if it enables employers to circumvent the duty of reasonable accommodation. Accordingly, where an employer is aware of a worker's disability, it must consider whether appropriate accommodation measures could enable continued employment before proceeding to dismissal, unless such measures would impose a disproportionate burden. ²² The automatic application of statutory sick leave limits without such an individualised assessment risks depriving Article 5 of its practical effect. In this respect, Pauni aligns with earlier case law on disability-related dismissal and reinforces the preventive function of reasonable accommodation.

Beyond the finding of indirect discrimination by association in Bervidi, the CJEU also marked a significant shift in its approach to reasonable accommodation. In Coleman, the CJEU had previously held that certain provisions of Directive 2000/78, including Article 5, applied only to persons with disabilities and not to their associates. ²³ In Bervidi, however, the CJEU reconsidered this position. It emphasised that the request for a preliminary ruling in Bervidi was broader, encompassing both Article 2(2)(b) of Directive 2000/78 and the duty of reasonable accommodation under Article 5, in order to ensure compliance with the principle of equal treatment and the prohibition of indirect discrimination by association. The CJEU also noted that, at the time of Coleman, the UNCRPD had neither entered into force nor been approved by the European Union. ²⁴

Relying on Articles 24 and 26 of the Charter of Fundamental Rights, the CJEU highlighted the right of children to such protection and care as is necessary for their well-being and the obligation to take their best interests into account in all aspects of community life. It further referred to Article 2(3) of the UNCRPD, which includes the denial of reasonable accommodation within the definition of discrimination on the basis of disability. That definition does not exclude caregivers or assistants from its scope. The CJEU thus stated that accommodation must, where necessary, also be provided to a worker who offers the assistance enabling a person with a disability to receive the primary care required by virtue of his or her condition. ²⁵ Without such an obligation, the prohibition of discrimination would lack practical effectiveness. Consequently, the CJEU concluded that an employer may be required to provide reasonable accommodation, such as fixed working hours, adapted to the circumstances of the case, unless doing so would constitute a disproportionate burden. ²⁶

Concluding remarks

Read together, Bervidi and Pauni illustrate a rather coherent judicial approach to indirect discrimination and reasonable accommodation under Directive 2000/78. Both judgments emphasise the need for a contextual assessment of apparently neutral rules, whether arising from employer practices or from national legislation. They also demonstrate the CJEU's increasing sensitivity to the realities of disability-related disadvantage, including its effects on family members and caregivers. In this respect, the rulings reinforce reasonable accommodation as a central instrument of EU equality law in the field of disability and confirm the CJEU's commitment to a substantive conception of equality, grounded in the practical effectiveness of the prohibition of discrimination rather than in formal neutrality alone.

Moreover, Pauni strengthens the line of the appropriate restrictions measures by reiterating the employer's right to productive employees. Bervidi represents a meaningful extension of existing principles and highlights the rights of a child with special needs of care. This interpretation reflects the UNCRPD's strong emphasis on enabling the participation in working life.

However, it must be noted that the CJEU emphasised that unfavourable treatment on grounds of disability as such does not undermine the protection provided for by Directive 2000/78 unless it constitutes discrimination within the meaning of Article 2. It further stated that the wording of Article 2(2)(b) on ‘particular disadvantage’ refers to such a disadvantage that would exist only where there is a serious, obvious and particularly significant case of inequality. The CJEU, although rather hypothetically and abstractly, stated that such a long period of sick leave per se could be a result of a social policy that in fact constitutes a means of protection by taking into account the needs arising from the disability of the worker, as there is no obligation of employment unless it can be considered profitable, which is, however, for the national court to assess in light of the existence of an objectively justified, legitimate, appropriate and proportionate aim.