The disabled worker is entitled to compensation if the employer does not remove the architectural barriers | My Rights | Economy

A woman in a wheelchair in the corridor of an educational institutionGETTY

Justice has given important support to equality in the exercise of labor rights of people with disabilities thanks to the judgment of a Social Court of Bilbao which has condemned the Basque Government to compensate a teacher with 40,000 euros for not carrying out accessibility works at the school where she worked.

In 2002, a teacher with a 33% disability and belonging to the Department of Education of the Basque Government obtained her definitive place in a primary school located on the slopes of a mountain, with accesses through long slopes and without a lift or ramps. mechanical or any other device for lifting people until the year 2021.

The teacher got the final access to the school paved, a railing was put up that did not reach the center and the school directors let her park halfway up the hill to access the school. She was also exempted from taking care of the yard and accompanying her students on field trips.

The Basque Government refused to remove the architectural barriers that made it difficult for people with physical disabilities to access the school, so the teacher sued the Department of Education for non-compliance with legal and conventional obligations in terms of occupational risk prevention and for violating their fundamental rights to dignity, physical and moral integrity, equal treatment and non-discrimination, honor and safety at work requesting compensation of 168,000 euros and a letter of apology from the Basque Government.

The head of the Social Court 5 of Bilbao considers in a recent ruling that the Department of Education of the Basque Government has repeatedly failed to comply with its obligations on occupational risk prevention, condemning it for violating the fundamental rights to physical and moral integrity, equality treatment and non-discrimination of the teacher.

To reach this conclusion, the judge considers that the concept of risk is defined as the possibility that a worker suffers a certain damage derived from work.

The conditions of the work environment (including personal and social relationships in the work environment) also fall within the scope of the concept of risk and since the standard does not make any exclusions based on the type of damage derived from work, it also includes psychological damage. suffered on the occasion of personal relationships that are maintained in the development of work activity.

indirect discrimination

The sentence recognizes that the Basque Government has violated the teacher's right to physical and moral integrity provided for in art. 15 of the Spanish Constitution and condemns the Department of Education for indirect discrimination against the worker through her inaction in the face of the successive requirements of the teacher, the various directors of the educational center, the prevention and medical services and the Ararteko

The judge rejects the violation of the fundamental right to the dignity of the teacher, recognized in art. 10 of the Constitution, because it is not an attack on a fundamental right. Neither does she condemn the Basque Government to write an apology letter asking for forgiveness for the treatment given to the teacher, since the right to honor has not been declared violated

Not carrying out accessibility works at the school "clearly implies that the worker could not participate in equal circumstances in the teaching activity due to her disability, not being able to go on excursions, obviously suffering a greater sacrifice" and, according to the judge, “serious in access to the center itself” for a person with a disability

The Ararteko recommended that the Department of Education promote accessibility conditions for the teacher, recognizing the Ombudsman of the Basque Country that the official body had not been sensitive to his suggestions.

On the other hand, the Basque Institute for Occupational Health and Safety sent a request to the Department of Education to adapt the teacher's job. The directors of the educational center also sent communications to the territorial manager to install an elevator for the teacher.

In addition, the medical examination declared the teacher fit with adaptive work restrictions "it being necessary that architectural barriers be eliminated both in access to the workplace and inside the center" and that she not perform tasks that involve moving weights, or that require restraints, runs, jerks, and playground care.

legal obligations

In the sentence, the judge recalls that Law 31/1995 on the Prevention of Occupational Risks, in relation to people with disabilities, obliges the employer in its art. 25 to specifically guarantee the protection of workers who are especially sensitive to the risks arising from work.

In accordance with the previous norm, the General Disability Law includes in its art. 37 bis that employers are required to take appropriate measures to adapt the workplace and the accessibility of the company.

On the other hand, the General Law on the Rights of Persons with Disabilities and their Social Inclusion recognizes in its art. 35 that "people with disabilities have the right to work, in conditions that guarantee the application of the principles of equal treatment and non-discrimination". In addition, there will be direct discrimination when a person with a disability is treated less favorably than another in a similar situation because of her disability.

recent regulations

On July 13, the Comprehensive Law 15/2022 for Equal Treatment and Non-Discrimination was published in the BOE, which recalls that the Constitution recognizes the right to equality and non-discrimination.

The new norm cites birth, race, sex, religion or opinion as particularly objectionable grounds for discrimination and prohibits discrimination for any other personal or social circumstance (implicitly understanding any impact on the work environment). In addition, the constitutional text establishes the obligation of the public powers to promote the conditions and remove the obstacles so that the equality of the individual and of the groups in which he is integrated is real and effective.

This Law, in its art. 6, establishes the differentiation between direct discrimination (that in which a person or group is integrated and that is, has been or could be treated less favorably than others in a similar or comparable situation, including the denial of reasonable adjustments to persons with disabilities) and indirect discrimination (when an apparently neutral provision, criterion or practice causes or may cause one or several persons a particular disadvantage with respect to others).

The new norm also includes discrimination by association (discriminatory treatment due to their relationship with another person) or by mistake (indirect assessment of the characteristics of the person or persons discriminated against); multiple discrimination (simultaneous or consecutive for two or more causes) and intersectional (when various causes concur, generating a specific form of discrimination); discriminatory harassment, inducement, order or instruction to discriminate, retaliation, positive action measures (differences in treatment to prevent, eliminate and compensate discrimination) and school segregation.

Calculation of compensation

Regarding the compensation requested by the teacher, the judge recalls the jurisprudence of the Supreme Court that establishes that moral damages are inextricably linked to the violation of fundamental rights (in this case, physical and moral integrity).

However, since its detailed estimate is especially difficult, the normal requirements for determining the compensation must be relaxed, with the judicial body establishing its amount prudently.

The judge sets in the sentence an amount of 40,000 euros -compared to the 168,000 requested- including the property, personal and moral damages claimed. To arrive at this amount, the head of the court takes into account the successive requirements and communications made by the teacher, by the directors of the educational center, the Ararteko, the Basque Institute of Occupational Health and Safety and the medical examinations to the employer to from the year 2004.

The judge also takes into account the pathology found, the non-granting of service commissions on two occasions that had to be appealed and the finally installation of an elevator in the center when the plaintiff was already retired.

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