Recent Case Law Changed Health Reinforced Employment Stability Criteria

• Published date: 05 July 2023
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employee Benefits & Compensation, Employee Rights/ Labour Relations
• Law Firm: L&E Global
• Author: Angélica María Carrión Barrero (López & Asociados)

Recent case law specified that the identification of disability based on the percentages provided for in the law is compatible for all cases that occurred before the entry into force of the Convention on the Rights of Persons with Disabilities.

Based on the Convention, the protection of enhanced employment stability is established when the following elements concur:

1. Physical, mental, intellectual, or sensory impairment, to medium and long term.
2. The existence of barriers that may prevent the worker with the impairment from effectively carrying out his or her work on an equal basis with others.
3. That these elements are known to the employer at the time of dismissal unless they are notorious for the case.

In order to request protection, and how the burden of proof operates, the worker must demonstrate that he/she had a disability (freedom of proof in labour) and that the employer knew about the disability at the time of retirement or that it was notorious. When assessing the situation of disability that leads to the protection of reinforced employment stability, at least three aspects need to be established:

1. The existence of a physical, mental, intellectual, or sensory impairment, limitation, or disability of medium or long term (human factor).
2. Analysis of the job, its functions, requirements, demands, the specific working environment and attitude (contextual factor).
3. The comparison and interaction between these two factors interaction of the impairment or limitation with the work environment.

If from the analysis above referred it is concluded that the worker is disabled and the termination of the employment relationship is linked to this reason, the dismissal is discriminatory and must be declared ineffective, and therefore the worker must be reinstated with the payment of wages and other respective amounts of compensation, together with the order for the reasonable adjustments required and the compensation contemplated in the law.

The Labour Chamber of the Supreme Court of Justice recalled that in order to dismiss a person with a disability, it is necessary to request prior permission from the Ministry of Labour; otherwise, a presumption of discriminatory dismissal is triggered, which can be rebutted in court by the employer.

Finally, the Chamber, in its function of unifying the case law distanced itself from the interpretations that consider applies to persons who suffer contingencies or momentary...