international employment law firm alliance L&E Global

Colombia: Recent case law changed health reinforced employment stability criteria

Recent case law specified that the identification of disability based on the percentages provided for in the law is compatible for all cases that occurred before the entry into force of the Convention on the Rights of Persons with Disabilities.

Based on the Convention, the protection of enhanced employment stability is established when the following elements concur:

  1. Physical, mental, intellectual, or sensory impairment, to medium and long term.
  2. The existence of barriers that may prevent the worker with the impairment from effectively carrying out his or her work on an equal basis with others.
  3. That these elements are known to the employer at the time of dismissal unless they are notorious for the case.

In order to request protection, and how the burden of proof operates, the worker must demonstrate that he/she had a disability (freedom of proof in labour) and that the employer knew about the disability at the time of retirement or that it was notorious. When assessing the situation of disability that leads to the protection of reinforced employment stability, at least three aspects need to be established:

  1. The existence of a physical, mental, intellectual, or sensory impairment, limitation, or disability of medium or long term (human factor).
  2. Analysis of the job, its functions, requirements, demands, the specific working environment and attitude (contextual factor).
  3. The comparison and interaction between these two factors, interaction of the impairment or limitation with the work environment.

If from the analysis above referred it is concluded that the worker is disabled and the termination of the employment relationship is linked to this reason, the dismissal is discriminatory and must be declared ineffective, and therefore the worker must be reinstated with the payment of wages and other respective amounts of compensation, together with the order for the reasonable adjustments required and the compensation contemplated in the law.

The Labour Chamber of the Supreme Court of Justice recalled that in order to dismiss a person with a disability, it is necessary to request prior permission from the Ministry of Labour; otherwise, a presumption of discriminatory dismissal is triggered, which can be rebutted in court by the employer.

Finally, the Chamber, in its function of unifying the case law distanced itself from the interpretations that consider applies to persons who suffer contingencies or momentary health alterations or who suffer from temporary, transitory or short-term pathologies, given that the Convention and the statutory law provided such protection only for those medium and long-term impairments that, when interacting with employment-related barriers, prevent their full and effective participation on equal terms with others. Here, it is worth specifying that the different health impairments per se are not a disability, as they can only be assessed for the purposes of this guarantee if the aforementioned characteristics are met.

Key Action Points for Human-Resources and In-House Counsel.

This decision is very significant for employers in all sectors. The Supreme Court specified two relevant elements to consider: The first is that barriers can be of an enunciative, attitudinal, communicative and physical nature; secondly, when the employer is aware of the worker’s barriers, he/she has the obligation to mitigate them and for that purpose, he/she must make the adjustments that are reasonable for each case, so that the worker can carry out his/her tasks under the same conditions as the others. It is important to emphasise that in those cases in which it is not possible to make the required adjustments, the employer is responsible for communicating this situation to the worker.

For employers, this recent ruling highlights the new criteria to be taken into account with reinforce employment stability due to health conditions. The employer may rebut the presumption of discriminatory dismissal by proving that it made the reasonable adjustments and, if it was unable to do so, by proving that they were a disproportionate or unreasonable burden, and that the worker was informed of them. Likewise, it can prove that an objective cause, just cause, mutual agreement or free and voluntary resignation of the worker was fulfilled.