Employers will be required to adapt an employee's role or offer a new one when requested
Following the ruling of the Court of Justice of the European Union discussed below, the legislator is proposing to amend Article 49.1 of the Workers' Statute so that the possibility of terminating an employment contract on grounds of severe disability or absolute or total permanent disability of the employee is made conditional upon:
- "the employee expressing their wish to remain with the company and requesting that reasonable, necessary and appropriate adjustments be made to their role to enable them to continue performing it"; or
- where this is not possible because it would constitute an EXCESSIVE BURDEN on the company, upon "a transfer to another vacant and available position in line with their professional profile and compatible with their new circumstances."
Draft preliminary bill amending and reforming the Workers' Statute
This forms part of the planned reform of the Workers' Statute currently in progress. Pending final approval by Parliament, we share below extracts from the draft:
This reform follows the ruling of the Court of Justice of the European Union of 18 January 2024 (Case C-631/22), in which the Court held that, pursuant to the Charter of Fundamental Rights of the European Union and the relevant Directive, Article 5 "must be interpreted as precluding national legislation under which an employer may terminate an employment contract on the grounds that the employee is permanently incapable of performing the duties arising by virtue of that contract due to a disability acquired during the employment relationship, without the employer being required, beforehand, to provide or maintain reasonable adjustments."
However, the obligation to implement reasonable adjustments — which may include a transfer to a different role as set out in the above-mentioned ruling (paragraphs 44 to 46) — shall not be enforceable where it would impose an excessive burden on the employer.
The Court of Justice of the EU (CJEU) notes that, in assessing whether a burden is excessive, account must be taken of the size, financial resources and turnover of the company in question, as well as the costs involved.
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