In a previous article, we addressed the problem of the (in)admissibility of access to a job applicant’s genetic information by the future employer.
Despite the wide scope of the legal and practical complexity of the issue, we were able to highlight, in very general terms, the interests that might motivate an employer to access this peculiar information.
In this context, on April 19, 2024, the Coimbra Court of Appeal handed down a judgment with the following summary:
I – In order for there to be an accident at work, there must be: an employment relationship, an event in the natural sense, an injury, death or reduction in earning capacity or working capacity and a causal link between the event and the injury and between the injury and the death or incapacity (article 8 of the LAT).
II – According to article 10 of the LAT, an injury found at the workplace and during working hours is presumed to be the result of an accident at work, i.e. by virtue of this presumption, the claimant is exempt from proving the causal link between the event (accident) and the injuries, however, this “no longer relieves him of the burden of proving the event itself” and the injury.
III – It has been proven that as a result of the physical effort expended in the preparatory tasks, the victim felt ill, and when the aforementioned teammates arrived at the scene, he was clinging to a concrete pillar near the gate and falling backwards, He was no longer able to speak, but only showed that he was in pain and went into cardiorespiratory arrest and died. We are dealing with an abnormal, sudden and unforeseen event that caused the death of the worker and because it occurred at the time and place of work and because of it, it is an accident at work.
IV – The rebuttal of the presumption referred to in article 10, no. 1, of the LAT required proof to the contrary, i.e. that the sudden death of the injured worker was due exclusively to the natural disease he suffered from.
It follows from this decision that, in the event of an accident at work, the employer has the burden of rebutting the presumption of a causal link between the accident and the injured person’s medical condition/injury, i.e. proving that the injury, in this case the worker’s death, was caused exclusively by the worker’s natural illness, under penalty of being liable for compensation for damages arising from the accident at work.
Despite the apparent disconnection between the situation in question and the genetic information, it is nonetheless interesting to note this onus on the employer.
In fact, it follows that, even if the worker’s genetic illness had contributed to the cardiorespiratory arrest and, consequently, death, the employer would also have the Herculean task of proving that the accident was exclusively due to the worker’s natural illness, i.e. that the event was part of a “natural death” situation.
The decision in question mentions other higher court decisions, including the Supreme Court of Justice ruling of June 30, 2011, which reads:
Under article 6 of Law no. 100/97, the sudden death of athlete C… is considered an accident at work, as it was determined that it was precipitated by the physical effort (exogenous cause) that his activity as a professional footballer demanded of him, an effort that led to a cardiac arrhythmia, an injury that caused his death. II- And even though that arrhythmia may have been the result of hypertrophic cardiomyopathy, considered a genetic disease only detected in the claimant post-mortem, it has been proven that the physical effort expended by the claimant in his professional activity, in the service of the 2nd defendant, B…, was a determining factor in the injury that caused his death, in other words, the work relationship was a determining factor in the result – the death of the claimant – which deserves the protection of the legal regime for accidents at work.
The foregoing, and in particular the onus referred to above, results in a reinforcement of the list of motivations of the employer indicated in the previous article, with regard to access to the genetic (and health) information of the job applicant.
Furthermore, it raises a series of questions, including: i) to what extent is it possible, in the event of an accident at work, whether or not the victim has died, to access their genetic information? ii) how can access to this information be reconciled with the right not to know – provided for in Article 10(2) of the Convention on Human Rights and Biomedicine – the right to privacy, the right to free development of personality, integrity and self-determination of the human person. ii) How can access to this information be reconciled with the right not to know – laid down in Article 10.2 of the Convention on Human Rights and Biomedicine, which is a dimension of the principle of human autonomy – the right to privacy, the right to free development of personality, the integrity and self-determination of the subject, or, in the words of João Carlos Loureiro, “gene-informational self-determination”? iii) How can access to information be reconciled with the same rights of family members (who most of the time, in the event of death, are a party to the legal proceedings) and who may become aware that the accident was triggered by a genetic disease of which they may also be carriers? iv) how, if this genetic data is known, the employee survives and the employment relationship is maintained, is the employee guaranteed that the employer will not use the employee’s genetic information when considering human resources management, for example, for the purposes of promotion or termination of the contract?
The density of the issues merits a treatment that in itself justifies other works and other branches of the legal sciences.
We will remain attentive to the development of this and other topics.
Rute Gonçalves Janeiro @ DCM | Littler
