First ruling in Spain issued by a Vigo court that applies the doctrine of European Justice that prevents the automatic dismissal of employees declared to be in a situation of total permanent disability despite the fact that the Workers’ Statute allows it. The judicial resolution comes after the Court of Justice of the EU (CJEU) resolved an issue raised by the Superior Court of Justice of the Balearic Islands and ruled that a company cannot dismiss a worker with permanent disability without previously making “reasonable adjustments.” ” to allow you to keep your job.
The European Court determined that Article 49 of the Spanish Workers’ Statute, which allows automatic dismissal for workers with disabling disabilities, is contrary to European regulations and the right to equality. After learning of the ruling, the second vice president and minister of Labor and Social Economy, Yolanda Díaz, announced this Friday that the Government is going to promote an upcoming legislative modification for these cases.
And also two days after the CJEU ruling, the Social Court number 2 of Vigo has been the first to apply this criterion in a ruling in which it declares a dismissal null and void in the face of a lawsuit filed by the lawyer Fabián Valero, founding partner of the Zeres office.
This is the case of a worker in charge of maintenance for a company since 2000 who went on temporary disability leave in February 2022 due to atypical chest pain, a disability that became total permanent that month of July. A year later, the company discharged him from Social Security.
“He agrees with us in the case of a worker with more than twenty years of seniority who, when he suffered permanent disability, was fired by the company without attempting to relocate him or adapt his position,” explained the lawyer. Javier Cominges, the lawyer who achieved the ruling in favor of the worker, has highlighted the relevance of this resolution “on the path of protecting and protecting people with disabilities in their right to work.”
As the ruling highlights, this is a step that removes “the foundations of the configuration that permanent disability has in our social security right” acting as a protection and guarantee of the right to work of people with disabilities. Because the company is obliged, before the termination of the employment relationship, to make reasonable adjustments that allow him to be relocated to another position compatible with his ailments, unless such adjustments represent an excessive burden.
The Vigo court recalls in its ruling that the concept of disability in light of the European directives “must be understood as referring to a limitation of capacity derived, in particular, from permanent physical, mental or psychological ailments that, when interacting with various barriers , may prevent the full and effective participation of the person concerned in professional life on equal terms with other workers.”
In this case, the plaintiff’s disability “results from permanent physical ailments linked to a work-related accident” but “does not prevent the worker in question from performing other functions for his employer or another company.”
Furthermore, the court recalls the doctrine of the Constitutional Court that points out how “the right not to be discriminated against on the basis of disability enshrined in article 14 CE includes the right to reasonable adjustments, which do not impose a disproportionate or undue burden, which are necessary to guarantee the right of people with disabilities to work on equal terms with others”.
