Everyone knows that the government has recently approved the reform of Article 49.1.e) in the Spanish Labour Relations Act, pursuant to a proposal made by the Ministry of Employment and Social Economy along with the Ministry of Social Rights, Consumers and Agenda 2030. This amendment means that a worker’s permanent disability, as an automatic reason for termination of the labour relationship, will be eliminated.

 

The elimination of the automatic termination of the employment contract, in cases when the employee is declared in a situation of total, permanent or absolute disability or the level currently called severe disablement, will enable the employment of disabled persons to be more efficiently protected from such automatic reason for termination at their employer’s discretion due to the simple fact of being declared disabled.

 

The possibility to terminate the employment contract, as already mentioned, has been decided by the company up to now but is now subject to the employee’s choice, who may request the following:

 

  • Adaptation of his/her job,
  • Change to another vacant and available job, according to his/her professional profile and that is compatible with his/her new situation.

 

Up to which point are companies obliged to adapt or make reasonable adjustments to the job of an employee who has requested this?

 

In this respect, bearing in mind the legislative uncertainty that has arisen regarding the elimination of the aforementioned provision, it seems logical to ask up to which point this obligation of adaptation is applicable, how it should be carried out with full guarantees and what would the consequences be if it is not diligently applied.

 

However, the Judgement of the High Court of Justice of the Balearic Islands of 19 March 2024, Appeal number 75/2022 is very useful in this respect since it clarified or interpreted certain issues that could lead to doubts or disputes.

 

In a nutshell, this judgement deemed that the General Act on disabled persons’ rights, approved by Legislative Royal Decree 1 of 29 November 2013, would be applicable in these cases and the High Court of Justice of the European Union has also made the same interpretation in several of its decisions.

 

The following questions and answers can be derived from the aforementioned law:

 

What can be understood as reasonable adjustments?

 

Firstly, Article 2 of this law defines reasonable adjustments as the changes and adaptations required and suitable to be made to the physical, social and attitudinal situation based on the specific needs of disabled persons, providing they do not imply a disproportional or unfair burden for the employer.

 

Which of these actions or measures for adaptation are required?

 

In this respect, Article 40, under the heading “Adopting measures to prevent or compensate the disadvantages caused by disability as a guarantee for full equality in the workplace”, stipulates that, in order to guarantee full equality in the workplace, employers must adopt sufficient measures to adapt the job and for accessibility to the company depending on the needs in each specific situation so that disabled persons can access the job, perform their work, make professional progress and obtain training, unless such measures imply an excessive burden for the employer.

 

Lastly, as a determining factor, when are such adjustments deemed as violated or breached?

 

In this case, bearing in mind that Article 63 of the aforementioned law includes the violation of the right to equal opportunities, stipulating that the right of disabled persons to equal opportunities, as defined in Article 4.1, is deemed to have been violated when, due to or based on their disability, there is direct or indirect discrimination, discrimination by association, harassment, infringement of the requirements for accessibility and making reasonable adjustments as well as infringement of the legally stipulated positive action measures.

 

Therefore, in conclusion, both from the standpoint of European Union law and Spanish regulations, the requirement of the mandate to make reasonable adjustments for disabled persons is clear and it will be of mandatory fulfilment for the employer to make this effort to adapt the job, although it is true that this is a particularly casuistic matter and depends on the employee’s limitations.

 

Conclusions regarding the previous explanations:

 

According to the previous explanations, the guidelines in the regulations recently announced must be seriously considered before drawing the conclusion that there is a clear failure to adapt the employee’s job, after a term of 3 months has elapsed in order to assess whether the impact of the reasonable adjustments has achieved the intended purpose, which is simply the intention that the labour relationship prevails over the termination of the contract. It must be recalled once again that termination is not automatically applicable in these cases, and you must be aware that if the dismissal takes place in this way there could be possible risks that it will be categorised as null and void due to being discriminatory, with its inherent consequences.

 

Therefore, we at RSM are at your entire disposal to clarify any doubts you may have about this or any other matters and to guide you when handling situations arising from this required adaptation of a disabled person’s job.
 


 

 

Autor: Alejandro Alonso, abogado de Derecho Laboral en RSM