The protection against the termination of employment contracts for disabled workers who still have residual working capacity is guaranteed both by the Employment Relationships Act (ZDR-1) and the Employment Rehabilitation and Employment of Disabled Persons Act (ZZRZI). Despite relatively uniform case law that has developed over the years, two recent rulings from the Higher Labor and Social Court have set new, stricter criteria for assessing the justification of dismissal reasons, which raise numerous dilemmas among employers in practice.
The ZDR-1 stipulates that an employer may terminate the employment contract of a disabled worker if the worker is no longer capable of performing work under the terms of the contract due to disability. However, the employer also has the obligation to ensure that a worker with residual work capacity is offered alternative work suitable to their remaining work capacity or work with reduced working hours. Substantive and material adjustments to the work and any maximum permitted working hours are granted to the disabled worker through a decision by the relevant authority that decides on their disability status.
Until recently, based on case law from the Higher Labor and Social Court of Slovenia (e.g., Judgment Pdp 88/2024 dated April 17, 2024), it was understood that if a worker no longer meets the general health conditions required for a specific job, because the physical demands of the job, as assessed by the employer’s risk assessment, exceed the worker’s health capabilities, it is assumed that the worker is no longer able to perform the work under the existing employment contract.
A decision by the disability authority confirming that the worker’s health condition no longer allows them to perform the job for which they have an employment contract meant that the worker was incapable of performing the duties and tasks associated with the employment contract.
The changed conditions under which the worker could perform work (primarily the job description) were, in the court’s opinion, considered to require a corresponding change in the employment contract (Article 49 in connection with Article 31 of ZDR-1), which meant that, in such cases, the worker was not performing the same job but a different one, which the employer was not required to systematize if such needs were not demonstrated. The court maintained that under the existing legislation, there is no obligation for the employer to reorganize their work process or reassign a job position that would only include tasks the worker could still perform given their health limitations.
On June 19, 2024, the Higher Labor and Social Court changed its stance with Judgment Pdp 79/2024 (and subsequently on July 3, 2024, with Judgment Pdp 215/2024), referring to Council Directive 2000/78/EC on the general framework for equal treatment in employment and occupation (Directive). Article 5 of the Directive requires employers to provide reasonable accommodations to ensure equal treatment of disabled persons, demanding that employers take appropriate measures based on specific needs to enable disabled persons to access, participate, or advance in employment or training unless such measures would impose a disproportionate burden on the employer.
The concept of “reasonable accommodation” within the rights acquired by a worker in the disability process also includes the employer’s obligation to adjust the existing job to the worker’s remaining work capacity if they are able to perform the essential duties of that job, or to maintain an already accepted reasonable accommodation, allowing the worker to retain employment. The employer is relieved of this obligation only if they prove that such an adjustment would impose a disproportionate burden in terms of the financial and other costs associated with the measure, the size and financial resources of the organization or company, or the availability of public funds or other forms of assistance, as outlined in the introductory statement of Article 21 of Directive 2000/78.
What it means for the employer to be disproportionately burdened by a measure and how they will need to prove this fact has not yet been assessed by the court. This is a key legal issue, as it determines both the employer’s obligation and the employee’s (disabled) right to a workplace adjustment. The rulings will certainly also impact the constitutional right to free economic initiative, which, among other things, foresees the freedom to manage a business entity in accordance with economic principles.
By Maja Skorupan, Co-Head of Labor and Employment, Law Firm Senica & Partners
This article was originally published in Issue 12.3 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.
