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DOI: 10.5553/EELC/187791072023008003004

European Employment Law CasesAccess_open

Case Reports

2023/23 Employers must bear the cost of eyewear purchased by employees using display screens (RO)

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Andreea Suciu en Teodora Mănăilă, "2023/23 Employers must bear the cost of eyewear purchased by employees using display screens (RO)", European Employment Law Cases, 3, (2023):123-125

    The obligation to provide workers who use display screen equipment with a special corrective appliance may be met by the direct provision of the appliance to the worker by the employer or by reimbursement of the necessary expenses incurred by the worker, but not by the payment of a general salary supplement to the worker, found the Court of Appeal following an ECJ ruling.

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    • Summary

      The obligation to provide workers who use display screen equipment with a special corrective appliance may be met by the direct provision of the appliance to the worker by the employer or by reimbursement of the necessary expenses incurred by the worker, but not by the payment of a general salary supplement to the worker, found the Court of Appeal following an ECJ ruling.

    • Facts

      Mr A was an employee of the Romanian Immigration Service. Following a significant deterioration in his eyesight, Mr A, on the recommendation of a specialist, had to change his glasses in order to correct the decline in his visual acuity.
      Arguing that the on-screen work and other risk factors caused a significant deterioration in his eyesight, Mr A requested his employer to reimburse him the costs (approximately € 530). Such request was refused as the employer asserted that it paid the employee a special salary supplement for work conditions.

    • Legal background

      Council Directive 90/270/EEC lays down the minimum safety and health requirements for work with display screen equipment. The Directive applies to workers who habitually uses display screen equipment as a significant part of their normal work The Directive expressly provides that:

      1. workers shall be entitled to an appropriate eye and eyesight test;

      2. workers shall be entitled to an ophthalmological examination if the results of the test show that this is necessary;

      3. if the results of the test show that it is necessary and if normal corrective appliances cannot be used, workers must be provided with special corrective equipment appropriate for the work concerned; and

      4. all such actions should have no additional cost for the worker.

      The Directive was transposed into national legislation through Government decision no. 1028/2006. However, the transposition process was rather formal, meaning that the national legislation only reproduced the provisions of the Directive, without further detailing them.

    • Judgment

      In the first instance, the Tribunal ascertained that such special corrective appliance must only be provided by the employer in accordance with company regulations and only at the express request of the employee. The decision was appealed.
      The Court of Appeal decided to suspend the case and initiated proceedings for requesting a preliminary ruling from the ECJ. The main issues referred to were:

      1. the concept of special corrective appliance;

      2. the relevance of the fact that such appliance can also be used outside the workplace; and

      3. the alternative methods of supplying such appliance besides direct supply by the employer.

      The ECJ decision – in case C-392/21 TJ – v – Inspectoratul General pentru Imigrări – answered all questions very clearly. For (i) and (ii) above special corrective appliances include spectacles aimed specifically at the correction and prevention of visual difficulties relating to work involving display screen equipment. Moreover, those special corrective appliances are not limited to appliances used exclusively for professional purposes. For (iii) above the employer’s obligation to provide the workers with a special corrective appliance may be met by the direct provision of the appliance to the worker by the employer or by reimbursement of the necessary expenses incurred by the worker, but not by the payment of a general salary supplement to the worker.

      Following such decision, the Court of Appeal annulled the Tribunal’s decision and obliged the employer to reimburse all costs. Based on the documentation, the Court ascertained that the employer did not provide an eye examination to the employee free of cost, nor did it initiate any steps in providing such appliance. The employer presented various reasons for non-compliance, from arguing that the employee should have informed it of such eye sight problems (thus ignoring its non-compliance with the obligation to provide free of charge an eye examination to the employee) to considering the value of the claim exaggerated (the cost included various treatments applied to the lenses as well as the assembly cost), without any supporting evidence of cheaper options with the same characteristics. The Court of Appeal rejected all arguments and awarded the employee all requested costs.

    • Commentary

      The ECJ decision and the subsequent national case that triggered such decision has had a far-reaching impact, effectively overturning an entire established practice in this particular subject.
      Prior to such decision, the interpretation was largely influenced by the conclusions of the Romanian Tax Authority. The Tax Authority held the view that since the employee also benefited from the improved eyesight created by the eyewear in their personal time, such eyewear should be classified as a benefit in kind offered to the employee and be subject to income tax. Only glasses that were explicitly provided and used exclusively during working hours were classified as protective equipment and thus exempted from in-kind taxation.
      As a result, numerous employers opted to abstain altogether from bearing the expenses related to eyesight correction. Instead, they commonly addressed the costs of eyesight examinations by providing medical insurance or private medical subscriptions. Alternatively, employees were encouraged to utilize the national health system if they wished to undergo such examinations.
      The ECJ decision brings much-needed clarity regarding the concept of special corrective appliances. However, the insufficient transposition of the Directive continues to be a source of challenge in meeting safety and health requirements for work involving display screen equipment.
      For instance, one of the challenges unresolved by the ECJ decision is determining the reimbursement level that employers can be forced to provide for such costs. Is there a threshold or a maximum amount that can be considered? Furthermore, the frequency of the reimbursement raises practical questions. Additionally, when an employee negligently damages the glasses, what measures can be taken when a new pair is needed? Can the employer request the employee to pay the new cost themself?
      In practice each company is left to define its own procedures and conditions. As a result, the topic will continue to generate debate.

    • Comments from other jurisdictions

      Germany (Anna Rebekka Barthold, Luther Rechtsanwaltsgesellschaft mbH): Council Directive 90/270/EEC was transposed into national German legislation by the Display Screen Equipment Ordinance (Bildschirmarbeitsverordnung) in 1996. This ordinance was repealed in 2016. Since then, the implementation can be found in particular – albeit somewhat hidden – in Annex Part 4, paragraph 2 no. 1 of the Ordinance on Preventive Occupational Health Care (Verordnung zur arbeitsmedizinischen Vorsorge, ‘ArbMedVV’). As in Romania, the German national legislation is largely limited to the mere reproduction of the wording of the Directive.
      In interpreting the statutory provisions, German legal literature and case law agree that not only are employees entitled to a special corrective appliance if it is necessary and appropriate for the work concerned, but that this entitlement also correlates with the employer’s obligation to bear the costs. Contrary to the situation in Romania, the law in Germany had already been interpreted prior to the ECJ decision as meaning that the employee was entitled to in-kind equipment. The strong tendency of the courts and legal literature was to reject a general salary supplement as insufficient for the employer to fulfil its obligation. If the case at hand had been decided in Germany, the employee’s claim for reimbursement would probably have been granted immediately.
      Incidentally, the EU Directive and also the German transformation law still leave room for interpretation, which has to be filled by the German courts. The case law to date can be summarized as follows: The employer must provide the employee with a special corrective appliance only if a normal visual aid is not sufficient and a special examination has shown that it is necessary for the performance of on-screen work, and only to that extent. This excludes the vast majority of everyday cases. Since special corrective devices are usually available for € 100 to € 150, if the employee wants more luxurious equipment, he or she must bear the cost himself/herself, as it is not considered ‘necessary’. Apart from this, the employee must only contribute to the special corrective appliance if it has an additional benefit, which means that it provides for more than the features required for the work itself.
      The issue raised in the report of what happens if an employee damages the corrective appliance has also been addressed in Germany, at least in part. If the damage concerns a purely special corrective appliance without any additional benefit, which is used exclusively at work, the costs must be borne by the employer, as is the case with other protective equipment. The German Federal Social Court ruled in 2001 (B2 U9/00 R) that, if a pair of glasses with additional benefits is damaged on the way to and from work, the damage has to be compensated by the public accident insurance. It will reimburse what is useful, thus ‘necessary’, e.g. tinted or anti-reflective lenses, but not designer frames.
      In summary, the ECJ ruling is rather unlikely to have a big impact on German case law and practice, as the status quo described above is already in alignment with it. Confirmed by the ECJ and thus finally clarified is that a reimbursement of costs is sufficient to fulfil the obligation to ‘provide’ a special corrective appliance, whereas a general salary supplement is not. Therefore, also in Germany, the ECJ ruling contributes to further clarification.

      Italy (Ornella Patané, Toffoletto De Luca Tamajo): An Italian court would have taken a different decision from the one taken in the present case by the Romanian court. Indeed, under Italian law, the employer is required to provide or reimburse the employee only special visual correction devices when prescribed by a competent doctor and when the use of normal visual correction devices, understood as those normally used by the employee outside the workplace, are not enough to ensure the performance of the work activity. Since these devices are related to employee protection, they are kept in the workplace, must be adapted to the employee, and must be used.

      Portugal (Joana Brisson Lopes and Inês Pessoa Jorge, SRS Legal): Although there are no case law decisions on this matter in Portugal to date, the truth is that the case in Romania has had a major impact in our country .In addition to multiple reports on social media, companies have expressed great concern about whether they must pay for glasses for their workers and many workers have come to claim this payment from their employers. Given that the Directive behind this controversy dates back to 1990, it is interesting that this issue has been brought up just now.
      Under Portuguese law, and according to what was mentioned in the case report, there is almost a complete correspondence between the Directive and the Decree Law – Decree Law 349/93 – which transposed it. However, given that in Portugal the specific Reparation Regime for Accidents at Work and Occupational Diseases may regulate the compensation of this contingency in some cases and if specific requirements are met, the outcome of the application of the decision in Portugal could possibly be different and the measures in order to avoid the consequences of this ruling may also be more straightforward. Pursuant to the Reparation Regime, when faced with a request made by an employee and to ascertain whether there is, in the specific case, an obligation for the company to pay the amount claimed by the employee, the company should/may request the presentation of a certificate issued by an occupational doctor or specialist. If the employee presents this certificate, and depending on its content, the following should be considered. If the need for the corrective equipment is classified as an occupational disease, the employee must present to the Social Security Department a request for the glasses to be supplied/paid by that entity (and never by the employer). If there is no occupational disease, the employer will be responsible for the supply/payment of glasses, provided that the medical certificate, cumulatively:

      • states that the examinations carried out reveal visual disturbances related to working with equipment with display screens;

      • confirms that these disorders require special devices and that normal corrective devices (glasses worn outside the workplace) do not suffice; and

      • prescribes special devices to correct and prevent visual disturbances related to working with equipment with display screens.

      Furthermore and in order to protect themselves, employers now feel encouraged to grant health insurance to their employees covering this contingency and therefore transfer the company’s obligation to pay for the employees’ glasses to an insurance company, in accordance with conditions and up to the amount agreed.
      Finally, in order to prevent abuse by employees – e.g. buying a very expensive pair of glasses – we believe it is imperative that companies set limits on the reimbursement/supply of special corrective devices, mainly through an internal policy.

      Subject: Health and Safety
      Parties: TJ – v – Inspectoratul General pentru Imigrări
      Court: Curtea de Apel Cluj (Cluj Court of Appeal)
      Case number: 272/20.02.2023
      Internet publication: ECJ decision: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62021CJ0392. Court of Appeal decision: https://www.rejust.ro/juris/ee96gd2d4.


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