Views of the Committee on the Rights of Persons with Disabilities dated April 2, 2019 in the case "V.F.K. v. Spain" (communication No. 2368/2014).
In 2014, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Spain.
Summary: The author was directly discriminated against on the basis of disability, since he was dismissed from the local police service after being recognized as having sustained complete loss of professional ability and was not given the opportunity to transfer to another job in this statement. The Committee found a violation of the author's right not to be discriminated against and the right to work.
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 recalled 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. The Committee recalled that, as noted in its general comment No. 6, 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. The Committee referred to relevant conventions adopted by the International Labour Organization (ILO), such as the Convention on Discrimination in Employment and Occupation (No. 111) of 1958, and the Convention on Vocational Rehabilitation of Persons with Disabilities (No. 159) of 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 8.4 of the Considerations).
The Committee recalled that the Convention 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. In addition, the Committee recalled that reasonable accommodation is an ex nunc duty, i.e. It occurs 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 more effectively and expand their opportunities. In addition, the Committee pointed to the preamble to the Convention, which states that the diversity of persons with disabilities must be recognized 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 8.5 of the Views).
States parties should take all necessary preventive measures to enable public authorities to use their staff in such a way that the rights of persons with disabilities are best exercised. In this sense, when assessing the relevance, suitability and effectiveness of a reasonable accommodation, it is necessary to take into account the financial costs, available resources, the scale of the institution providing a reasonable accommodation (in full), the impact of changes on this institution and the entire volume of its assets, and not just the resources of any one of its structural units (paragraph 8.6 of the Considerations).
The Committee drew attention to the fact that 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 draws information from the legislatures of several national jurisdictions, as well as from scientific research. In order to decide which measures of reasonable accommodation should be taken, the State party needs to ensure that public authorities determine what changes can be made in practice to enable the employee to perform his or her basic functions. In cases where such changes (which do not create an excessive burden) cannot be identified and implemented in practice, the transfer of an employee to another job should be considered as a last resort of reasonable accommodation. 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 8.7 of the Considerations).
The Committee's assessment of the factual circumstances of the case: the author claimed that such an opinion 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 the conduct of a specific A "medical examination" to identify the possibilities of transferring the relevant person to another job. The author also noted the existence of other legislation, which provides for the possibility of simultaneously receiving a pension in connection with permanent complete loss of professional ability to work and transfer to another job (paragraph 8.3 of the Considerations).
The Committee noted that the possibility of a dialogue aimed at assessing and strengthening the author's capacity within the ranks of police officers was completely excluded, since he was dismissed from public service and he did not have the opportunity to ask for a reasonable accommodation for his transfer to another job. The Committee further stressed that the State party had not provided information leading to the conclusion that there were no other functions that the author could have performed in the police department where he served (paragraph 8.6 of the Views).
The Committee considered that the transfer to another job, regulated differently by Spanish law, represented an institutional structure designed to combine the obligations provided 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, in accordance with article 7.2 of the Decree on the Procedure for transferring employees of the Barcelona City Police to another job, none of the employees of this police body, in respect of whom a conclusion was made on permanent complete loss of professional ability as a result of limited opportunities, could apply for transfer to another job. In addition, the Committee noted 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, which was not done in this case. In this regard, the Committee concluded that the fact that the author partially lost the ability to perform the usual functions of a police officer should not exclude the possibility of him performing alternative or other auxiliary functions in the same police body (paragraph 8.8 of the Views).
The Committee considered that the provision of legislation that excluded the possibility of transferring the author to another job (i.e., article 7.2 of the Regulation on the Procedure for Transferring Barcelona City Police Officers to another job) did not guarantee the exercise of his rights enshrined in the Convention, in particular, a specific assessment of his disability with a view to transferring him to another job. The Committee noted that, since it was a norm in which an attempt was made to objectively consider various degrees of disability in order to develop and coordinate a disability pension payment regime with job retention on equal terms, the Decree on the procedure for transferring Barcelona City Police officers to another job excluded any assessment of alternative functional capabilities of persons in respect of whom It was concluded that there was a permanent complete loss of professional ability to work, which, in turn, affected the right to work, as was the case in the author's case (paragraph 8.9 of the Considerations).
The Committee noted that the legal provisions applied in the author's case, which prevented him from transferring to another job or participating in a dialogue in order to gain access to activities that complement the usual tasks of police officers, contradict the rights enshrined in articles 5 and 27 of the Convention. In addition, the Committee considered that, since article 7.2 of the Decree on the Procedure for Transferring Barcelona City Police Officers to another Job deprived all persons who were recognized as having permanent complete loss of professional ability to work of the right to apply for transfer to another job, the author was discriminated against on the basis of his disability in terms of "continuity"his public service in violation of article 5 of the Convention. This article protects the right of persons with disabilities to equality and non-discrimination, and article 27 protects the right of these persons to work and employment. With regard to article 5 of the Convention, the Committee stressed 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 expressed confidence that in this case 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, had received a conclusion of permanent complete loss of professional ability to work. The Committee also considered that, although the State party had a legitimate aim to institutionalize the transition of civil servants or officials to an alternative type of activity, the Ruling applied in the author's case violated his rights under articles 5 and 27 of the Convention (paragraph 8.10 of the Views).
The Committee noted: The decree on the procedure for transferring Barcelona City Police officers to other jobs dated back to 2002, while the State party ratified the Convention in 2008. In this regard, the Committee pointed out that the country's legislation in force prior to the ratification of the Convention by the State party continued to use language inherent in the "medical approach", for example, terms such as "disability" or "medical examination" were used to assess the participation of persons with disabilities in various aspects of social life, as confirmed in this case. The Committee further noted that the State party had a wide range of regulations at the level of autonomous communities or even within the same municipality, which led to discrimination on the basis of disability in the treatment of persons in similar situations. In this regard, the Committee concluded that the State party should comply with its general obligations under article 4 of the Convention concerning the modification and harmonization at the local, autonomous community and national levels of legislation that prevents the transfer of persons with disabilities to other jobs, does not provide for an assessment of their potential problems and opportunities, and as a result, their right to work is violated (paragraph 8.11 of the Considerations).
The Committee's conclusions: The author's dismissal from service constituted a violation of paragraphs "a", "b", "e", "g", "i" and "k" of article 27, considered separately and in conjunction with paragraphs "a", "b", "c", "d" and (e) Article 3; paragraphs 1 (a), (b) and (d) and 5 of article 4; and paragraphs 1, 2 and 3 of article 5 of the Convention.