Can an employer refuse to change the working conditions of a parent or guardian if they require fixed working hours or a particular place of work to care and support a disabled child? The Court of Justice of the European Union (CJEU) recently dealt with this issue in a case involving an Italian station operator.

Facts of the matter

The employee had made repeated requests to her employer to be permanently assigned a place of work with fixed working hours so she could care for her severely disabled son. The employer provisionally granted such an adjustment but refused to make this permanent.

The employee felt this constituted indirect disability discrimination and sued her employer. The Italian Court of Cassation referred the matter to the CJEU asking whether the EU prohibition on direct discrimination still applies if the person who has been discriminated against is not disabled themselves, but cares for a disabled child.

The decision

The CJEU held that the prohibition of indirect discrimination on grounds of disability applies to an employee who does not themselves have a disability but who is subject to such discrimination because of the assistance that they provide to their child who has a disability. In 2008, the Court held in the Coleman case that ‘associated discrimination’ could also be included in direct discrimination. Now the Court has confirmed that this protection also applies to indirect discrimination.

Even seemingly neutral arrangements, such as fixed shift patterns or inflexible working time requirements could in fact put parents of disabled children at a particular disadvantage and thus infringe the principle of non-discrimination under EU law.The CJEU emphasised that employers are obligated to examine suitable and requisite measures to ensure equal treatment. This obligation results from Art. 5 of Directive 2000/78/EC and comprises the obligation to provide ‘reasonable accommodation’, such as making adjustments to working hours, place of work or distribution of tasks, provided this would not impose a disproportionate burden on the employer.

In its reasoning the CJEU referred to the Charter of Fundamental Rights of the European Union, in particular to the rights of the child (Art. 24) and the rights of persons with disabilities to social and occupational integration (Art. 26). These rights are to be interpreted in light of the UN Convention on the Rights of Persons with Disabilities, which expressly also requires the protection and support of the families of persons with disabilities. Employers must therefore design working conditions in such a manner that parents of disabled children can comply with their duty to care for their children without running the risk of being indirectly discriminatory due to fixed arrangements.

The national court must now determine in each individual case whether the changes requested to working hours would impose a disproportionate burden on the employer. In doing so commercial and organisational factors, the size of the company and the availability of funding must be considered, in particular.

Practical relevance

In implementing the provisions of the Directive, the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG) also prohibits indirect discrimination due to disability, including in terms of employment and working conditions (sections 1, 2 (1) no. 2 and section 3 (2) AGG). As a result of the judgment of the CJEU dated 11 September 2025 this prohibition also includes indirect associated discrimination. 

This extended interpretation could now result in the implementation of the concept of reasonable accommodation. The employer’s right to give instructions in accordance section 106 sentence 3 of the German Industrial Code (Gewerbeordnung, GewO) does expressly state, for instance, that the employer must take the ‘employee’s disability’ into account when exercising their discretion. Section 164 (4) of the German Social Code Book IX (SGB IX) also only expressly refers to the right of a severely disabled person to have their employer make adjustments to the workplace. The principle of non-discrimination defined by the CJEU must, however, be implemented at national level so that exercising employers’ right to give instructions and individual rights under SGB IX also include the obligation to take caregivers into account in light of this case law, even if it remains unclear how close the personal relationship must be between the disadvantaged employee and the person to be cared for.

Comments

There is no simple or direct answer as to which consequences this judgment will have in practice. The CJEU has made it clear that the scope of the obligation to provide reasonable accommodation always depends on the specific circumstances. This includes the type of work, the organisational structure and the operational resources. Employers must therefore ensure on a case by case basis whether and in what format adjustments to working conditions are required in order to avoid indirect discrimination.

If a caring situation comes to light the employer should carefully check whether the adjustments requested by the employee are economically reasonable and are able to be implemented within the scope of operating conditions. 

If this is not carried out or if an obvious or reasonable adjustment is refused without a valid reason, the employee may have the right to bring an action seeking the implementation of the requested adjustments and damages or compensation in accordance with section 15 AGG. In light of this, we recommended that the decision process be documented transparently and a meeting sought with the employee in question as soon as possible. A cooperative approach, ideally including the HR department, the Disabilities Officer and the Works Council, will increase legal certainty and will make it easier to achieve viable solutions.

If you require any further information on this topic please contact us and we will be happy to help.