When Seeking for No Discrimination Generates Even More Discrimination

In Colombia both the legislation and the case law, have understood the importance of respecting and promoting the free right to work for people who have any type of disability including physical or mental disabilities.

In this regard, since the issuance of Law N° 361 of 1997, there have been advances in promoting different mechanisms and incentives to guarantee the social integration for those people who have any health limitation. Moreover, there have been efforts and indeed considerable progress through the legislation in order to: i) generate incentives for employers that hire those people, and ii) guarantee the labor stability (health immunity) to those who are hired.

In this sense, the main objective of the health immunity, that protects people with disabilities, is to prevent employees from being discriminated by their employers, with a termination of their labor contract motivated by their disability or in relation with such.

However, these mechanisms and initiatives are not being implemented effectively at the moment due to the labor reality of our country. The health immunity that protects people that are in a situation known as “manifested weakness” (name given by the Constitutional Court of Colombia), has been misinterpreted by the judges who have extended such immunity without any limitation, even for cases that are not covered by such protection. This unlimited protection has prevented terminations of labor contracts that are not only fair but also necessary for the labor relations and the working environment of a Company.

That is the main reason why some employees have taken attractive advantages of any issue related to their health (even if the health affectation is a simple flu, stress or any other sickness with a lesser importance) to feel that they are able to do whatever they want or not to do anything at work, because they are “untouchable” by their employers because of their health situation.

Even more, this unlimited protection has caused some employees to believe that they can make very serious offenses to their job duties, even incurring in criminal acts such as theft, minor cases of swindling, among others, and they cannot be fired because of their health condition or even worse, they have to be very well paid with a high amount of severance, if their employers want to terminate their Contract by signing a mutual agreement for the termination.

In our opinion, this extreme protection given by the judges exceeds the parameters of the legal basis. That has generated an important disincentive for employers hiring people with disabilities because there’s a higher risk and fear of not being able to terminate a contract when it is clearly required be terminated with a fair and/or legal cause, than the benefits created by the legislator for hiring disable people.

Nowadays, the majority of the employers in Colombia are not willing to hire employees with any kind of disability, because if they do, they face the risk of having workers who may incur in serious offenses without being able to fire them, unless they can previously obtain permission from the Ministry of Labor, which in practice is very hard to be obtained, given that such process is a very long and complex ordeal.

Therefore, it is very sad to say that the hard work of those who are looking forward to generate the inclusion of people with disabilities is not yielding sufficient results. Case law is trying to prevent discrimination and promote the equal right to work, but unfortunately, the produced effect is the opposite.

In this sense, the only alternatives employers count with in order to terminate a Contract of an employee with a disability, as we said before, even if he or she has incurred in a very serious offense or a legal cause has occurred, seems to be: (i) by terminating the Contract without just cause with the payment of the legal severance, which in some cases may be very high; or (ii) by mutual agreement, which has to be the result of a negotiation with the employee which may also include the payment of a high amount of money.

In short, the previous reflection takes us to a first conclusion: until there is not a clear limitation in the protection of the health immunity that applies to people with disabilities; the programs, laws and all the efforts the government may do in order to generate the labor inclusion of those people and stop discrimination against them, will be unsuccessful, and therefore the State will not accomplish its duty to protects the rights of those citizens.

In this regard, it is mandatory that judges should respect the parameters defined by the legislation and endorsed by the Supreme Court of Justice, which has established that the health immunity should only protect people with certificated disabilities, with a moderate or high degree. On the other hand, it is necessary for judges to allow termination with just cause without having to obtain the previous permission from the Ministry of Labor, because in those cases it is evident that the termination has not relation and it is not in reason of the disability of the employee.

Recently, there is new criteria in the case law that seems to be the light at the end of the tunnel. The Constitutional Court has recently established that employers does not needs to obtain the previous authorization of the Labor Ministry, when there is a proven just cause; because in those cases, it is clear that the termination is not discriminatory because it has no relation with the disability of the employee. Nevertheless, this case law has to be even more developed and applied by all judges in order for it to be the first step to solve the situation.