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 the preparation of complaints. Subsequently, the complaint was communicated to Spain.
The author's forced retirement due to injuries that led to permanent disability and received by the author as a result of a traffic accident, in the opinion of the Committee on the Rights of Persons with Disabilities, constituted a violation of the Convention on the Rights of Persons with Disabilities.
As could be seen from the text of the Views, the author claimed that his rights under article 27, paragraph 1, considered separately and in conjunction with articles 3, 5 and 13 of the Convention on the Rights of Persons with Disabilities were violated, since the State party, on the basis of lack of regulatory regulation at the local level, discriminated against him 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 assessment of the factual circumstances of the case: with regard to the author's allegations regarding article 27, paragraph 1, considered separately and in conjunction with articles 3, 4 and 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 by not applying Law No. 16/1991 of- due to the lack of developed local regulatory legal acts provided for by the said law (in articles 43 and 44), which establishes the possibility of transferring local police officers to other jobs, and by applying the Basic Provision on Civil Servants of the Kingdom of Spain, 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 normal 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: the municipal regulations on the procedure for transferring employees of the Figueres City police to another job, published on 26 March 2015, would have been contrary to the interests of the author, since he 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. 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, that is, it arises when a disabled person has such a need, but participating States should take all preventive measures to allow public authorities to use their staff in such a way that the rights of persons with disabilities are implemented in the best possible way. 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 a 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 did not have the 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 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 indicated that discrimination with regard to 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 capacity. 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 article 27, considered separately and in conjunction with articles 3, 4 and 5 of the Convention.