By: Juan Manuel Gómez Moreno
Lawyer
Topics: Legal environment
Date: October 19, 2015
There are many times that I have said that science advances, that diabetes does not change but their care, that this is much more bearable and that the limitations, if there are, that by the way I do not know them, eachmore day and that, in short, the work capacity of a candidate should not be measured in case it has diabetes or not, but in case it is able to perform that position to which it aspires.
However, not in a few places are applied outdated criteria with respect to people with diabetes and their work performance, hence the proposition not of the law recently registered by the Fede in the Congress of Deputies, which intends to review the less the less theCriteria for access to public employment, eliminating the exclusion of a generic nature by suffering from diabetes, which forces to review and update the criteria and, consequently, could be the beginning of a change.
But going to the grain, everything said so far is because for the first time, and even with a negative history, a court gives the reason to a young man with diabetes who had been eliminated from an opposition phase for the only reason for diabetesSince 7 years of age, and that he had overcome the tests to access the box office agent (nowadays called Loba Head) at the Metro Madrid company.
Those who have been with diabetes for many years, or without it but within this “world”, you will remember that it is not the first time it is told not a young man with diabetes, who cannot access a job in Metro de Madrid bysuffer diabetes.Therefore, I want to encourage you to claim, and thank the brave young man who decided not to throw in the towel, since steps like this help to advance.
The Judgment (firm already) is from the Superior Court of Justice of Madrid, of June 16, 2015, and deals with the subject of worker with diabetes and existence of discrimination due to health.
This is the case of a young man with diabetes who, after being called by the company to pass medical examination, was set out from the job whose call had already overcome.The TSJ considers that there is discrimination since it was separated only for suffering from diabetes, a disease that is not disabling, nor was there a risk in its job.
It was preselected in 2009 by the Regional Employment Service for the coverage of the places that were or that were produced in the company for the category of box office, the position No. 119 was assigned with 83.88 points and was integrated intoThe surpluses work bag, so it was a matter of time that was called.
The call took place in 2012, which meant the last step prior to hiring, but was definedly excluded from the process for suffering from diabetes, considering it incompatible with the aptitude requirements established by the company for the position.
We present claim and subsequent demand, I will not enter large circumloccies because I have no room for it, but basically say that we allege the breach of articles 14 and 23 of the Constitution, article 17 of the Statute of Workers and articles 22 and 25of the Occupational Risk Prevention Law.In short, we considered that there was discrimination due to health and that the evaluation criteria were not (and still without being) adapted to reality, since it would be enough to be informed minimally to see how the treatment of diabetes has evolved to raise some updated criteriaAnd more according to reality, considering that it cannot be exclusively at the discretion of the company to assess the access requirements.
The sentence establishes that, in order for a worker not to be used because of aPhysical or psychic limitation or limitation, the existence of a risk that, in the opinion of the room, does not appear here, nor are the sufficient foundation of the psychophysical demands of the workplace of the box office or head of lobby and its head of lobby and itsFailure to comply with the worker.
It also recalls that the Constitutional Court (TC) has established that mandatory medical recognitions are only enabled by law when the following notes attend: the proportionality to risk;The indispensability of the tests (for accrediting the objective need for risk that is intended to avoid, as well as the reasons that lead the employer to carry out that medical exploration to the worker) and the presence of a preponderant interest or a situation of objective necessity.
He adds that the obligation of medical awards cannot be imposed if the health of the worker himself is only at stake, since he is free to have the surveillance of his health by submitting, or not, the medical recognition.
Something very important to highlight is that, as established by the TC, the medical examination in the employment relationship is not an instrument of the entrepreneur for a control device of the health of workers, nor a faculty that is recognized to verify the professional capacityor the psychophysical aptitude of its employees with a personnel selection purpose or similar.His axis, on the contrary, rests in a worker's right to surveillance of his health.
Well, moving all the above to the present case, the TSJ of Madrid concludes that the company submitted the worker, unjustified, to a medical examination for access to a job that has been denied, without the requirements of the requirementsPsychophysics of said position, nor the risks of the same.
Another interesting detail is that he adds that the diabetes suffered by the worker does not have the legal consideration of disability, not being disabling to any degree, nor has it been proven that the results of the analytics that have been practiced are incompatible or limitedFor the performance of the box office agent or lobby head, or suppose a risk for customers, workers or even for himself.
Therefore, the Court declares the company's decision unjustified, and the worker's right to access the job whose call exceeded, in the category of box office agent or lobby head.
