The case of H.M. v. Spain. Views of the Committee on the Rights of Persons with Disabilities dated August 21, 2020. Communication No. 37/2016.
In 2016, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Spain.
As seen from the text of the Considerations, the author claimed that his rights provided for in subparagraphs "a", "b") "e", "g", "i" and "k" of paragraph 1 of article 27, considered separately and in conjunction with paragraphs "a", "b", were violated "c", "d" and "e" of article 3, sub-paragraphs "a", "b" and "d" of paragraph 1 and paragraph 5 of article 4, paragraphs 1, 2 and 3 of article 5 and paragraph 2 of article 13 of the Convention, since the State party on the basis of lack of regulatory regulation discriminated against him at the local level, by not giving him the opportunity to maintain active employment by transferring to another job due to the author's persistent complete loss of ability to perform his usual professional activities (paragraph 3.1 of the Considerations).
The Committee's legal position: article 4, paragraph 1 (a), of the Convention on the Rights of Persons with Disabilities imposes a general obligation on States parties to take all appropriate legislative, administrative and other measures to implement the rights recognized in the Convention, including rights related to work and employment. The Committee also recalls that article 27, paragraph 1, of the Convention requires States parties to recognize the right of persons with disabilities to remain in work on an equal basis with others, to take all appropriate measures, including legislation, to prohibit discrimination on the basis of disability in continuing employment and to ensure reasonable accommodation for persons with disabilities during it. As noted in his general comment No. 6 (2018) on equality and non-discrimination, in order to achieve de facto equality within the meaning of the Convention, States parties must ensure that there is no discrimination on the basis of disability in the field of work and employment. In doing so, the Committee refers to relevant conventions adopted by the International Labour Organization (ILO), for example, the Convention on Discrimination in Employment and Occupation (No. 111) of 25 June 1958 and the Convention on Vocational Rehabilitation and Employment of Persons with Disabilities (No. 159) of 20 June 1983, signed and ratified by Spain. Article 7 of ILO Convention No. 159 provides that the competent authorities of the participating States shall take measures to organize and evaluate vocational guidance, vocational training and employment services so that persons with disabilities can keep their jobs (paragraph 9.4 of the Considerations).
The Convention on the Rights of Persons with Disabilities prohibits all forms of discrimination against persons with disabilities, including denial of reasonable accommodation as one of the prohibited forms of discrimination. Thus, all its forms are equally contrary to the Convention, and no distinction should be made on the alleged level of severity of the violation of the right to equality and non-discrimination. Reasonable accommodation is an ex nunc obligation, i.e. it arises from the moment when a disabled person needs access to a situation or environment inaccessible to him or when he wants to exercise his rights. This means that the guarantor of rights must enter into a dialogue with people with disabilities in order to include them in the process of making possible decisions that will allow them to exercise their rights and expand their opportunities more effectively. In addition, the Committee recalls the preamble to the Convention, which refers to the need to recognize the diversity of persons with disabilities in order for any institutional mechanism for dialogue established in connection with the need to ensure reasonable accommodation to address the specific situation of each person (paragraph 9.5 of the Views).
The search for reasonable accommodation opportunities should be a process of cooperation and interaction between the employee and the employer, aimed at finding the best solution that meets the needs of each of them. In order to ensure a proper understanding of the concept of reasonable accommodation, the Committee uses information from the legislative bodies of several national jurisdictions, as well as applies the results of scientific research. In order to decide what measures of reasonable accommodation should be taken, the State party needs to ensure that the public authorities determine what changes can be made in practice so that the employee can perform his basic functions (V.F.K. v. Spain (CRPD/C/21/D/34/2015), paragraph 8.7.). In cases where such changes (which do not create an excessive burden) cannot be identified and implemented in practice, then the transfer of an employee to another job should be considered as a last resort of reasonable adjustment. In this regard, the authorities of the State party are responsible for taking all necessary measures of reasonable adaptation to adapt existing posts to the specific needs of a staff member (paragraph 9.7 of the Considerations).
The Committee's assessment of the factual circumstances of the case: with regard to the author's allegations regarding paragraphs "a", "b", "e", "g", "i" and "k" of paragraph 1 of article 27, considered separately and in conjunction with paragraphs "a", "b", "c", "d" and "e" of article 3, subparagraphs "a", "b" and "d" of paragraph 1 and paragraph 5 of article 4 and paragraphs 1, 2 and 3 of article 5 of the Convention on the Rights of Persons with Disabilities, the question before the Committee was whether the State party violated the author's rights, having failed to apply Law No. 16/1991 in practice due to the lack of developed local regulatory legal acts, provided for by the aforementioned law (in articles 43 and 44), which establishes the possibility of transferring local police officers to another job, and applying the Basic Provision on Civil Servants, according to which, in the event of dismissal from service as a result of recognition of the persistent complete loss of the ability of a local police officer to perform ordinary functions, this employee cannot be transferred to another job (paragraph 9.2 of the Considerations).
The Committee took note of the author's arguments under articles 5 and 27 of the Convention that he was directly discriminated against on the basis of disability when he tried to remain employed as a local police officer, since he was forced to resign after being recognized as having sustained complete loss of professional ability. This, in turn, deprived him of the opportunity to request a transfer to another job due to the lack of local legislation in the municipality of Figueres on transfer to another job, provided for by Law No. 16/1991. The author claimed that such a conclusion or such an administrative assessment of his disability, conducted by the National Institute of Social Security, did not take into account his ability to engage in alternative or other auxiliary activities (as provided for in article 43 of Law No. 16/1991 on Local Police Officers of July 10, 1991, which prescribes a specific "medical examination" to identify the possibilities of transferring the relevant persons for other jobs). The author also noted the existence of other legislation of the autonomous community, which explicitly allows for the possibility of transfer to another job in case of recognition of permanent complete disability, the regulations of the Generalitat of Catalonia regulating the procedure for transferring fire service employees to another job and allowing such a possibility, as well as administrative decisions of the National Institute of Social Security and other court decisions (they provide for the possibility of simultaneously receiving a pension in connection with permanent complete loss of professional ability to work and transfer to another job). The Committee took into account the State party's argument that the Municipal Regulations on the Transfer of Figueres City Police Officers to another Job, published on 26 March 2015, would be contrary to the interests of the author, since it recorded a persistent complete loss of professional ability incompatible with transfer to another job (paragraph 9.3 of the Considerations).
The Committee also noted that the State party has adopted a General Law on the Rights of Persons with Disabilities and their Social Integration in order to bring its legislation into line with the standards of the Convention (Royal Decree No. 1/2013 of 29 November 2013, which approved the revised text of the General Law on the Rights of Persons with Disabilities and Their Social Integration.). According to this law, public authorities must take anti-discrimination and positive measures to guarantee the right to equal opportunities for persons with disabilities (article 64, paragraph 1). Among such anti-discrimination measures, the Committee identified employee employment programs that allow public authorities to transfer government employees with disabilities to other jobs, including by ensuring reasonable accommodation. Although the latter is an ex nunc obligation, i.e. When such a need arises for a disabled person, participating States should take all preventive measures to enable public authorities to use their staff in such a way that the rights of persons with disabilities are best realized. In this sense, when assessing the relevance, suitability and effectiveness of a reasonable adaptation, it is necessary to take into account the financial costs, available resources, the scale of the institution providing a reasonable adaptation (in full), the consequences of changes for this institution and the entire volume of its assets, and not just the resources of any one of its structural units. The Committee noted that in the present case, the possibility of dialogue aimed at assessing and strengthening the author's potential within the ranks of police officers was completely excluded, since he was dismissed from public service and forced to resign and he had no opportunity to request a reasonable accommodation for transfer to another job. The State party has not provided information leading to the conclusion that there are no other functions that the author could perform in the police department where he served (paragraph 9.6 of the Views).
The Committee stressed that the possibility of initiating a process to assess the barriers that prevented the author from remaining in the police was excluded, since the author was deprived of the status of a civil servant at the time of his forced retirement and he did not have the opportunity to request a reasonable accommodation that would allow him to perform other functions. The Committee also noted that the State party had not demonstrated that there were no other functions in the police where the author served that he could perform (paragraph 9.8 of the Views).
The Committee considered that the transfer to another job, regulated in different ways by Spanish law, was an institutional structure designed to combine the obligations arising for the State party from the right to work (continuity of employment) and the right to equality and non-discrimination. The Committee noted that in accordance with article 43 of General Law No. 16/1991, all those who "partially lose their ability to work" can be transferred to another job. The Committee pointed out that the absence of the local regulations developed by the Figueres City Council, provided for by Law No. 16/1991, and the application of Law No. 7/2007 on the Basic Regulation on Civil Servants instead of the Regulations on the Procedure for Transfer to another job did not allow the author to apply for a transfer to another job, as provided for in the said law. In addition, the Committee stressed that in the author's case, the administrative reports on disability issued by the National Institute of Social Security did not take into account the author's potential to carry out alternative or other support activities. The Committee also noted that article 43 of General Law No. 16/1991 prescribed a special medical examination to assess the alternative potential of persons with disabilities. This was not done in the author's case. In this regard, the Committee noted that the fact that the author partially lost the ability to perform the usual functions of a police officer did not exclude the possibility of him performing alternative or other auxiliary functions in the same police body (paragraph 9.9 of the Views).
The Committee considered that the absence of local legislation on transfer to another job did not guarantee the exercise of the author's rights enshrined in the Convention, in particular, the possibility of a specific assessment of his disability in order to use his opportunities to transfer to another job or assign him other support functions. The absence of local regulations prevented the transfer of persons with permanent complete disability to another job, which, in turn, affected their right to work, as was the case in the author's case (paragraph 9.10 of the Considerations).
The legal provisions applied in this case, which prevented the applicant from obtaining a transfer to another job or participating in a dialogue in order to gain access to activities that complement the usual tasks of police officers, were contrary to the rights provided for in articles 5 and 27 of the Convention. The author was discriminated against on the basis of disability in terms of continuous employment in public service in violation of article 5 (guarantees the right of persons with disabilities to equality and non-discrimination) and article 27 (protects their right to work and employment). With regard to article 5 of the Convention, the Committee decided that one of the forms of discrimination prohibited by the Convention had clearly occurred in this case, regardless of whether it was considered direct discrimination or a denial of reasonable accommodation. In addition, with regard to article 27 of the Convention, the Committee pointed out that discrimination against continuity of employment was due to the refusal to establish any dialogue or to assess alternative functional capabilities of persons who, like the author, received a conclusion of permanent complete loss of professional ability. Although the State party had a legitimate aim to institutionalize the procedure for transferring civil servants or officials to an alternative type of activity, however, the law applied in the author's case due to the lack of Regulations on the procedure for transferring employees of the municipal police of the Municipality of Figueres to another job violated his rights under articles 5 and 27 of the Convention (paragraph 9.11 of the Views).
The Committee's conclusions: The author's forced retirement as a result of a traffic accident in which he suffered injuries resulting in permanent disability constituted a violation of paragraphs "a", "b", "e", "g", "i" and "k" of paragraph 1 of article 27, considered separately and in conjunction with paragraphs "a", "b", "c", "d" and "e" of article 3, subparagraphs "a", "b" and "d" of paragraph 1 and paragraph 5 of article 4 and paragraphs 1, 2 and 3 of Article 5 of the Convention.