Colombia: Enhanced Job Stability for Workers with HIV: When Does Dismissal Protection Apply?

In Colombia, extensive case law protects workers from discrimination, particularly those suffering from catastrophic illnesses. Within this legal framework, debates have emerged around “reinforced labour stability rulings” and its interpretation, providing extra job security for vulnerable workers whose conditions might hinder their ability to fulfil their duties.

This bulletin highlights jurisprudence confirmed by the recent decision SL3505-2024 from the Labour Chamber of the Supreme Court of Justice of Colombia. The ruling once again emphasises the enhanced job stability afforded to these workers. It focused on determining whether a worker with HIV (human immunodeficiency virus) was entitled to reinstatement after a unilateral dismissal, given his special employment protection.

In this case, the former employee sought to declare his dismissal null and void, requesting reinstatement and payment of wages, social benefits, and severances. He argued that he was entitled to enhanced job stability under Article 26 of Law 361 of 1997. His claim was based on his HIV diagnosis, which, in his view, placed him in a vulnerable situation, warranting the nullification of his dismissal.

In the first instance, the Superior Court of Justice of Bogotá ruled in favour of the former employee, stating that the company had failed to obtain authorisation from the Ministry of Labour for his dismissal. The court also emphasised that, under Article 35 of Decree 1543 of 1997, the worker was not obligated to disclose his health condition to the employer.

 

Ruling of the Supreme Court’s Labour Division

The Court overturned the Tribunal’s decision and the reinstatement, reasoning that a proper interpretation of the norms and adequate worker protection required meeting the fundamental conditions that establish the existence of discrimination or reinforced labour stability.

The Court emphasised that, while an employee is not required to disclose their medical diagnosis, applying enhanced job stability due to health conditions requires the employer’s awareness of the condition and its impact on work performance. Otherwise, discrimination cannot be deemed based on unknown or notorious factors.

In this case, the Court decided that the employer was unaware of the worker’s condition and that their medical state never hindered job performance. Consequently, the worker was not entitled to enhanced job stability protection against dismissal, nor was there an act of discrimination.

 

Convention 111 of the International Labour Organisation (ILO)

The ruling also challenges the application of ILO Convention 111, ratified by Colombia that prohibits employment discrimination based on health conditions. This convention is essential for ensuring equal opportunities and preventing employment decisions driven by prejudice.

 

Court Background

A similar analysis was conducted in ruling SL1152-2023, which addressed enhanced job stability in the case of a worker diagnosed with cancer. This decision set forth key criteria, such as:

• The employee must prove that he/she has a disability that prevents or hinders him/her from doing his/her job;
• This disability must persist in the medium to long term; and
• The employer must be aware of the worker’s disability before dismissing them unless it is self-evident.

 

Through its jurisprudence, the Supreme Court emphasizes case-by-case analysis when applying enhanced job stability, ensuring that legal protection is granted only when there is a clear connection between the health condition and the termination of the employment contract, as well as evident obstacles preventing the performance of duties.

The special protection known as “reinforced employment stability due to health issues” represents a significant limitation on employers’ right to terminate employment contracts with severance in Colombia. Judgements like this help clarify that a medical diagnosis does not automatically trigger protection; rather, a causal link between health-related limitations affecting the worker’s duties and the dismissal decision must exist. Such rulings provide greater clarity on the scope of this protection.