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What to do with a worker who is definitely unfit for the contracted work?

By 6 Março, 2022Março 31st, 2022No Comments

A very recent ruling by the Court of Justice of the European Union – handed down in case C-485/20, HR Rail SA, dated last February 10 – has highlighted a serious latent problem in Portuguese labor legislation: that of the legal and practical consequences of a worker’s supervening and definitive inability to perform the contracted activity. The treatment given to such cases seems to have been called into question by European law.

First of all, the mechanism used by the legislator – that of the expiry of the employment contract – is clearly dysfunctional, both because of the inhuman situation in which it places the worker (not even entitled to compensation for length of service) and because of the serious uncertainty it places on the employer as to how to proceed in such circumstances. In other legal systems, the issue simply puts into play the lawfullness of a possible dismissal (with the right to compensation), since the consequences of disability will depend, in most cases, on the judgment and decision of the employer.  In the Portuguese case, the typicity of the causes of dismissal does not seem to include the discussed hypothesis.

On the other hand, under national law, such incapacity, apart from cases of accident or occupational disease, does not oblige the employer to try to offer the worker an occupation compatible with his remaining capacity. And this is the point referred to in the judgment we mentioned at the beginning.

The worker was a maintenance agent for the Belgian railroads, who was at one point diagnosed with a heart disease that required the placement of a pacemaker, a device sensitive to electromagnetic fields emitted on railway lines. As a result, the worker was permanently incapable of performing the functions for which he had been hired, and any others that involved exposure to electromagnetic fields. As a result, he was dismissed.

Now, the Directive 2000/78/EC, November 27, 2000 (the general framework for equal treatment in employment and occupation) includes a provision (Art. 5) that, with the aim of “ensuring compliance with the principle of equal treatment in relation to persons with disabilities”, obliges employers to make “reasonable accommodation” so that a person with such a condition “has access to, can perform, or can advance in employment”, as long as this does not result in a burden “deemed disproportionate”.

The court before which the employee challenged the dismissal, taking the view that his state of health allowed him to be classified as “disabled”, decided to refer to the Court of Justice for a preliminary ruling the question whether that provision of the Directive should be interpreted as recognizing a “relocation obligation” on the part of the employer, where there was no “disproportionate burden” on him.

The Court of Justice has ruled in the affirmative, holding that it follows from Article 5 of the Directive that “a worker (…) who has been declared unfit, on account of his disability, to perform the essential functions of the post for which he is employed, shall be assigned to another post for which he possesses the required skills, ability and availability, provided that this does not impose a disproportionate burden on the employer”.

This decision – not forgetting the margin of indetermination inherent in the notion of “disproportionate burden” – seems to shake from its foundations the treatment given to such cases under Portuguese law, even inculcating the need for its amendment, in order to harmonize it with European law.

António Monteiro Fernandes, Of Counsel @ DCM | Littler