The Labor Division of the Supreme Court of Justice issued he judgment SL 1152 of May 10, 2023, determining new guidelines concerning the reinforced labor stability protection due to disability or disability protection, according to Law 361 of 1997, which imposes certain restrictions to the termination of the employment agreement by the employer.
The Court’s new criterion refers to a key point, related to which workers are entitled to this protection. Thus, it was concluded that the following elements must concur for this privilege to operate:
- The employee suffering from a physical, mental, intellectual, or sensory impairment, in the medium or long term. Thus, those employees with momentary health alterations, temporary, transitory, or short-term pathologies are not entitled to this protection.
- The existence of barriers that may prevent the employee who suffers the impairment from carrying out their work, that is, the fulfillment of their functions and the assigned role, on equal terms with others.
- The employer’s knowledge of the health situation or that it is notorious.
Therefore, the Court abandoned previous criteria in which the situation of disability and the existence of this disability protection was defined based on a numerical factor expressed in the percentage of loss of working capacity as it was understood in the past, in accordance with Decree 2463 of 2001.
Instead, based on a Human Rights approach and on the Convention on the Rights of Persons with Disabilities, which was approved by Law 1346 of 2009, the Court considered that those employees who have an impairment that generates limitations or barriers in the work environment are entitled to this protection. This implies that each case must be carefully analyzed not only concerning the existence of a health situation as such, but also if this, in fact, generates any barrier to the exercise of the functions of the worker and the performance of their role at the company.
The Court added that the employer must implement affirmative actions to promote the inclusion of workers in these conditions, through reasonable adjustments based on objective criteria, provided, however, that its implementation does not entail a disproportionate burden.
In this sense, if the employee has a disability and the employer did not request authorization for the dismissal before the Ministry of Labor, then the dismissal shall be presumed discriminatory, i.e., it will be understood that the decision to terminate the contract was based on the health situation, and therefore will be ineffective. In this scenario, the consequence shall be the reinstatement to the position, the payment of salaries and other applicable concepts, and the compensation of 180 days of salary.
However, employer may rebut this presumption to avoid these consequences, demonstrating that it implemented the reasonable adjustments or that these would have been disproportionate; or even that the employment agreement terminated based on an objective or just cause, on a mutual agreement or that the employee freely and voluntarily resigned, cases in which this privilege would not operate.
In the particular case, the Court concluded that, although there was a medium or long term impairment of the employee – diagnosis of breast cancer -, there was no evidence demonstrating that this generated a barrier at work to the employee in the performance of her duties in the position of Systems Development Leader, so although there was an impairment, the employee was not disabled, and in that sense, she was not entitled to the disability protection.
Lastly, the Court stated that workers with disabilities have full capacity to bind themselves, for example by signing resignation letter or agreements with the employer, under the same conditions as other workers, as considering a restricted ability from these employees would imply an approach to the concept of disability from a perspective of prejudice and paternalism, which would differ from the concept set forth under applicable law.