The Court ratifies the compensated termination of the contract and increases the compensation for violation of fundamental rights to 20,000 euros, describing the business conduct as serious and persistent.

The appeal number 218/2024 filed by both parties is resolved, in relation to the ruling issued by the Social Court No. 3 of Malaga on a case of protection of fundamental rights.

The worker began providing services as a security guard for the defendant company on January 19, 2018. On April 1 of that same year, his contract was transformed into a permanent, full-time contract, under modality 130, provided for the subsidized hiring of people with disabilities.

In February 2019, the company's Occupational Medicine Service evaluated her health and declared her suitable with limitations, recommending the use of approved protection measures and the adoption of physical activity habits. Subsequently, in May 2020, a new report was issued declaring her fit again with limitations, specifying that she could not stand for prolonged periods and had to alternate 10 minutes sitting for every hour of standing work.

In May 2019, the worker submitted a letter to the company informing about her limitations. Until then, she had been providing services to a specific client, but from that date on, she was assigned to 12-hour shifts from Monday to Friday in health centers and hospitals. Four months later, in September 2019, he verbally informed the company that his health condition was worsening due to strenuous work hours.

From that moment on, the company modified his shifts, assigning him 9-hour days, splits and in different work centers. Sometimes I didn't even have an hour's rest between shifts and location changes. As a consequence of these conditions, the worker suffered several relapses that negatively affected her disability, with several medical leaves and requests for leaves of absence.

In January 2020, he submitted a document denouncing workplace harassment, related to his 65% disability.. In said letter, he alleged that the company had not adapted his workplace in accordance with the medical reports nor had it provided him with personal protective equipment (PPE), a situation that was also reported to the Labor Inspection.

The company modified its work quadrants between two and four times a month, making it difficult to reconcile work and family. Given this situation, he requested a reduction in hours, but received no response. Despite this, the frequent changes in the quadrants continued, in order to cause errors and justify a sanction, which materialized in two days without employment or salary.

The worker also reported that the shifts and centers that she requested were assigned to new employees without disabilities. Furthermore, another colleague with a disability worked in an adapted position with 8-hour days, while she was denied that possibility.

The employment situation went from excessive hours to a deficit, remaining below the calculation established in the agreement, while other workers continued to work hours longer than the minimum. This situation affected both his physical and mental health.

The worker stated that the company's objective is to force her voluntary termination, thus avoiding having to return the subsidies obtained for her hiring and without incurring penalties that could affect future contracts..

The lower court ruling declared the existence of a violation of fundamental rights of the worker, for workplace harassment, and agreed the termination of the employment contract with the right to compensation in accordance with article 50 of the Workers' Statute. For this reason, it ordered the company to pay 3,955.60 euros in compensation for contractual termination, as well as an additional 10,000 euros for damages derived from the violation of fundamental rights.

Given this resolution,The company filed an appeal requesting its annulment or, alternatively, its revocation., denying the existence of harassment or extinctive cause, alluding to organizational reasons. For its part,The worker also appealed, requesting an increase in compensation for moral damages. from 10,000 to 30,000 or 38,000 euros.

The Superior Court of Justice of Andalusia The company's appeal was completely dismissed and the worker's appeal was partially upheld. It confirmed the termination of the contract with compensation, but modified the amount of compensation for violation of fundamental rights, raising it from 10,000 to 20,000 euros . To do this, it applied the doctrine of the Supreme Court and the criteria of the Law on Infractions and Sanctions of the Social Order (LISOS), considering the motivation of the lower court ruling to be insufficient with respect to the amount initially set.

The TSJ took into account the worker's recognized disability, the company's continued refusal to adapt her job despite the requirements, the repeated medical leave resulting from her situation, and the fact that another employee in similar conditions DID receive the corresponding adaptation. He considered that the business's actions could constitute two very serious offenses classified in articles 8.12 and 13.4 of the LISOS, whose minimum penalty exceeds 15,000 euros.

The Court assessed several factors to determine the new compensation amount: the persistence in the business conduct, the personal harm caused to the worker, the real possibilities of adapting the position, the company's knowledge of the situation and the repeated violation of the fundamental rights to equality and physical integrity. Based on this, it set the compensation at 20,000 euros, assigning 10,000 for each of the very serious violations.