The ruling of the Court of Justice of the European Union prohibits automatic dismissal when the situation of incapacity is declared, which is what was provided for (as a possibility) in the Spanish legislation in force at the time of the ruling. It should be noted that as a result of this judgment, the Workers' Statute has been modified to adapt it to the judgment, which was issued on the basis of Directive 2000/78, and where the CJEU confirms that every Member State must respect Union Law, and therefore, a national regulation on social security cannot go against Article 5 of this Directive 2000/78.

The case originated in Spain when a truck driver fractured his right foot in an accident at work, which led to a medical leave for temporary disability, subsequently the mutual accident insurance company discharged him, and finally (following a claim by the worker) the National Institute of Social Security (INSS) declared him to be permanently totally disabled, due to the injuries he sustained.

It should be remembered at this point that a total permanent disability implies that the worker cannot perform the functions of his job, therefore he should not continue in the same, but it is considered that he will be able to perform the activities of another job.

That said, it may seem that the ruling contradicts the very definition of total incapacity: if he cannot perform the functions of the job, isn't dismissal mandatory?

In reality, what the CJEU establishes is that what is not in accordance with EU law is that dismissal is automatic. This law establishes that the exercise of the right to work must be safeguarded and promoted, even for people who acquire a disability during employment, because the purpose is the maintenance of work. And based on this right, in any situation of supervening disability that prevents the normal development of the activities of the job (not only in the case of total disability), the company must carry out the assessment on the possible modifications of the job so that the worker keeps his job. This is the key issue: the job will no longer be the same, and therefore it will be compatible with the total disability.

This action of evaluation of the modifications of the work position is usually carried out in this way when there is a situation of Unfitness, certified by the occupational health prevention service after the corresponding health surveillance. A Not Suitable implies the same as a total incapacity: the worker cannot continue in his job. The next step is to assess whether the job can be modified to make it compatible with the worker's injuries, or whether he can be relocated to a different job, also compatible. And after this assessment, the company will be able to relocate him (obtaining the medical aptitude for the new position), or it will have to argue the reasons, technical, economic or organizational, for which it cannot carry out the adaptation or the change of position, and only after this argumentation it can proceed with the dismissal. What is eliminated with the sentence is the automatism, nothing more, and the company is not forced to bear an excessive burden, it is only forced to prove it. And for years the Supreme Court has already established the doctrine of how the reports must be made to be considered properly demonstrative, including medical reports of unfitness, which must detail the relationship between health injuries and their incompatibility with some tasks of their job.

 

The main function of occupational health professionals is to watch over the health of workers, in a preventive manner. A Not Suitable means that the worker will “lose his health” if he continues to perform certain tasks of his job, and therefore may be forced to change the situation, modifying the position, or changing it, or making the dismissal. And if the option is finally the latter, it is very important that the reports are made in a way that they are legally acceptable, according to the doctrines discussed, because otherwise the dismissal will be void.

From Ergasia Seguretat we advise our clients in all the medical aspects of these situations, but also in the legal ones