Termination of the employment contract due to permanent incapacity and its potential collateral effects on social security rights

Abstract

The CJEU has deemed discriminatory the legal provision that allows for the termination of an employment contract following an administrative decisión granting a permanent disability pension in its degrees of total, absolute, and severe disability. The reason for this is that these degrees of permanent disability legally render the worker a person with a disability, and the Workers’ Statute does not require that the employer assesses the possibility of introducing reasonable adjustments that would facilitate the worker’s continued employment within the same undertaking before the contract is terminated. At first glance, this criticism could be addressed through legal reform that imposes this obligation on employers as a prerequisite for terminating an employment contract. However, if the legislator only intervenes in this specific aspect, there is a risk of significant distortions in other related areas, such as Social Security. An increase in the range of possible occupations for a person with a disability, and even the possibility of continuing to provide services in the same job after the appropriate adjustments, are circumstances that could impact the rules on qualification, review and compatibility with work of permanent disability benefits.