Equality – Employment – In public lawEconomic, Social and Cultural Rights – Right to a Pension
Compensation for workplace injuries
RULING No. 786/2017
21 of November of 2017
The Ombudsman asked the Constitutional Court to declare the unconstitutionality with generally binding force of the norms contained in Article 41(1)(b), (3) and (4) of Executive Law no. 503/99 of 20 November 1999, in the wording given to it by Article 6 of Law no. 11/2014 of 6 March 2014 (Legal Regime governing Accidents While on Duty and Occupational Illnesses within the Scope of the Public Administration, RAS). The grounds for this request were that the norms allegedly violated both the constitutional right of workers to fair reparation when they are the victims of work-related accidents or occupational illnesses, and the principle of equality. The Court rejected the petitioner’s arguments and declined to declare the norms unconstitutional.
I – Article 41 of the RAS – regulates the accumulation of periodic benefits due as a result of permanent incapacity with other monetary payments and benefits received by public-service workers with permanent incapacity. Law no. 11/2014 of 6 March 2014 expanded the situations in which such accumulations are prohibited, thereby preventing the accumulation of a pension for partial permanent incapacity with the part of the worker’s pay that corresponds to the permanent reduction in his/her earning capacity.
II - The constitutionality doubts put forward by the Ombudsman - violation of the fundamental right of workers performing public functions to fair reparation and of the principle of equality – are, in essence two dimensions of the same problem, that is, that of determining if the fair reparation for labour mishaps should imply that the accumulation of the pension for incapacity and the totality of one’s salary or retirement pension is legally permitted.
III – The fundamental right to fair reparation for work-related mishaps, enshrined in Article 59 paragraph (1) (f) (1) of CRP is a fundamental right of the workers. Its aim is to guarantee that the damage suffered in a labour-related context will be the object of reparation, through reconstitution of or compensation for the earning capacity the worker has lost as a result of an accident in the workplace or an occupational illness.
IV – As private sector workers, public sector workers have the fundamental right to assistance and reparation in the event of work-related mishaps, although they are the object of a special regime (RAS).
V – The incapacity pension intends to provide reparation for work-related damage when there is a loss of the earning capacity of a worker who has been the victim of a work-related accident or occupational illness. However, the specificity of employment in the public service implies that these workers do not normally experience any reduction in their capacity to earn in the case in case of permanent partial incapacity, that is, in principle there is no work-related damage in the sense of a reduction in earnings capacity. This is why Article 41(1) (b) of the RAS suspends the payment of the incapacity pension in such cases.
VI – In order to demonstrate that partially incapacitating work-related accidents and occupational illnesses do not generate work-related damage one must analyse (i) the worker’s current capacity to earn and (ii) his/her potential earnings capacity.
VII - Where the current capacity is concerned, there is no loss suffered by the worker, since according to Article 23(4) of the RAS the definitive loss of the worker’s capacity to work has no consequences for his/her remuneratory status. In short, the prohibition of accumulation contained in Article 41 (b) of RAS is based on the fact that in the event of partial incapacity a public administration worker continues to receive his/her payment in its entirety.
IX – Turning to the capacity for potential future earnings – the Court said that although one might think that a partial incapacity would constitute an obstacle to one’s career progression within the Public Administration, the specificity of the performance of public-service functions mitigates this possibility.
X – Given the huge range of functional contents included within the activities of the Public Administration, a partial incapacity should not preclude a public sector worker from being able to perform functions that are compatible with his/her remaining work capacity, prevent his/her performance from being assessed or prevent him/her from being promoted. The Court considered that, unlike in the situations covered by the ordinary regime, it made no sense to consider that someone who is incorporated into a general public-service career would become absolutely incapable of working as usual, all the more so in that where public employment is concerned, the norm is that there is no such thing as “usual work”, but only generic functional categories. That is, the victim of a work-related accident or occupational illness is either totally incapable of working, in which case his/her incapacity is absolute and his/her public employment bond should be terminated, or merely unable to do some particular type of work, meaning that his/her incapacity is partial and does not prejudice his/her ability to perform functions that are compatible with his/her remaining capacity.
XI – Turning to the allegation that the norms in question were not in conformity with the principle of equality enshrined in Article 13 of the Constitution, the issue at stake was that the RAS prohibitions on accumulation had no parallel in the ordinary regime governing work-related accidents. This entailed a problem of relative justice – that of determining if the difference between the RAT and RAS accumulation regimes breaches the principle of equality by imposing an asset-related disadvantage on public servants who suffer work-related mishaps compared to workers covered by the ordinary regime.
XII – In the ordinary regime, the accumulation of pay and pension for partial permanent incapacity is permitted because the law allows employers to adjust the worker’s pay in accordance with his/her loss of productivity. The whole system is therefore based on the on the logic underlying the way the labour market operates, that is, the presumption that a person’s capacity to work and a person’s earning capacity will tend to converge. The unconditional permission to accumulate laid down in Article 51(1) and (2) of the RAT naturally rests on that premise.
XIII – In different terms, in the universe of the public service, there is no raison d´être for that presumption, because in principle, work-related accidents and occupational illnesses do not lead to a loss of earning capacity. As such, the requirement to treat every worker as equal before the law actually justifies the adoption of different accumulation regimes in the ordinary and public-service labour domains.
XVI – Moreover, the positions of the entities responsible for paying the pensions are not the same: under the ordinary regime, the liability falls on insurers, whereas in the public sector workers’ pay and pensions for permanent incapacity are funded by taxpayers. The prohibition on accumulating an incapacity pension and the corresponding part of the worker’s pay is thus also intended to safeguard the rationality of the public spending in this domain. As such, the Court concluded that the norms set out in Article 41(1)(b), (3) and the segment of (4) of Executive Law no. 503/99 of 20 November 1999 do not violate the principle of equality enshrined in Article 13 of the Constitution.