This business obligation has been subject to increasing attention from the Labour Inspectorate over recent years, leading to specific campaigns aimed at promoting awareness of this obligation, as well as the sanctioning of any breaches detected.
Article 42.1 of the General Law on the rights of disabled persons and their social inclusion establishes that companies employing 50 or more workers are obliged to employ at least 2 per cent of employees with disabilities. In addition, it provides that, in exceptional circumstances, they may be totally or partially exempt from this obligation in certain cases, provided that alternative measures are applied as determined by law.
Several complex rules of autonomous, national and international scope are applicable in relation to this business obligation and there is very little case law on this subject. Therefore, the criteria established by the Labour Authorities and the Labour Inspection and Social Security is particularly relevant. For this reason, the Technical Criterion of Labour Inspection 98/2016, which includes the applicable interpretative criteria and the practical actions in provincial inspections, is of great interest. Throughout this brief commentary, we will make reference to the fundamental points of this document.
Companies obliged to comply with the reserve share are those private and public companies with a total workforce of 50 or more employees. The reference period to calculate the workforce is the previous 12 months calculated from each relevant start date and it is the company itself that must verify its compliance according to the evolution of its workforce. In the Technical Criterion, certain general computation rules are determined to calculate the average of the total workforce of the company to determine whether or not the company is legally bound together with the reserve share of 2% of the jobs. Express references are made to user companies that contract with temporary recruitment agencies and company groups.
For the purposes of complying with this obligation, a disabled employee is considered as a person with a level of disability equal to or greater than 33%. This situation applies to people that have been granted a pension for permanent disability with a level of total, absolute or serious disability. The company complies with this obligation when it hires ex novo, and when any of its employees that are already hired acquire the status of disabled person or receive one of the aforementioned pensions and continue to render services. With respect to the latter, the employer is permitted to ask the employee about his/her possible disability, but the employee may not want to make their condition public and is not obliged to do so in accordance with the applicable rules on protection of personal data.
The company may use any of the legally provided modalities of labour contract to fulfil its obligation, that is, for both permanent and temporary contracts as well as for full-time or part-time contracts.
In view of this main obligation, it is exceptionally provided that companies may be exempt by means of collective bargaining agreements or by voluntary option of the employer duly notified to the labour authority. In these exceptional cases, they are allowed to comply with their obligation in full by adopting alternative measures, or in part by combining direct hiring with the application of alternative measures.
Companies cannot freely apply these alternative measures and it is necessary for them to request and obtain in advance the relevant administrative resolution of the declaration of exception from the competent Public Employment Services, following the procedure established in Royal Decree 364/2005 of 8 April and in the applicable regional regulations.
To this end, they must prove that one of the two exceptional cases exists, that is, the concurrence of causes of a productive, organizational, technical or economic nature that motivate the special difficulty of incorporating employees with disabilities into the workforce of the company, or the inability of the competent public employment services or employment agencies to take care of the specific job offer.
The alternative measures to direct hiring are:
- Entering into commercial or civil contracts with special employment centres or self-employed people with disabilities for the supply of raw materials, machinery, or goods necessary for the development of the company’s activity, or for the provision of associated external services or the constitution of a labour enclave. The annual amount of the contracts must be at least three times the amount of the Public Indicator of Multiple Effect Income (IPREM) for each disabled employee not hired;
- Donations or sponsorships destined to public utility foundations or associations that include professional formation, labour insertion or the creation of employment for the disabled in their social purpose. These actions should be destined to these specific purposes and the minimum annual amount of the same should be 1.5 times the amount of the IPREM for each disabled employee not hired.
The administrative authorization to implement the alternative measures is valid for three years. Following that period, the company must request a new resolution.
Finally, we wish to point out that companies that fail to comply with these obligations may be penalized with fines of up to € 6,250 in recurring cases and this non-compliance is included in the Public Sector contract regulations as a cause to prohibit contracting with the Administration.