Commentary on Judgment No. 10744 of 2024: Refusal to Hire Disabled Workers and Burden of Proof

The recent ordinance No. 10744 of April 22, 2024, issued by the Court of Cassation, offers an important reflection on the mandatory hiring of disabled workers, establishing clear principles regarding the employer's burden of proof. In particular, the judgment clarifies that the refusal to hire can only be justified if the employer demonstrates the absolute incompatibility between the worker's disability and all available positions within the company.

Regulatory Context

Law No. 68 of 1999, particularly Article 5, establishes the obligation for companies to hire disabled workers. In the event of referral requests, the employer must demonstrate, through documentary and concrete evidence, the non-existence of roles compatible with the impairments of the disabled worker. The Court, in its decision, reiterates the need for a comprehensive assessment of available roles and the worker's skills.

Refusal to Hire and Burden of Proof

Referral request for disabled workers - Refusal to hire referred workers - Incompatibility between available roles and the disability of the referred worker - Employer's obligation to allege and prove incompatibility - Basis - Factual situation. In the case of a referral request for disabled workers, refusal to hire can only be justified in the face of absolute incompatibility between the disability of the referred worker and all available roles within the company, which the employer has the burden to allege and prove due to the mandatory nature of hiring disabled workers and the typicality of exemption cases pursuant to Article 5 of Law No. 68 of 1999. (In this specific case, the Supreme Court rejected the employer company's appeal, as it neither proved the non-existence of roles incompatible with the impairments of the referred disabled individuals, nor submitted an application for exemption pursuant to Article 5, paragraph 3, of Law No. 68 of 1999).

In this specific case, the Court rejected the company's appeal, highlighting that no evidence had been provided regarding the lack of compatible roles. This prompts an important reflection on employers' responsibility in analyzing available positions and their suitability for disabled workers.

Practical Implications of the Judgment

• Obligation to document: Employers must be prepared to document and justify their position, gathering concrete evidence of incompatibility.
• Assessment of roles: A careful assessment of roles is essential to ensure that there are no hiring opportunities for disabled workers.
• Compliance with regulations: Companies must be aware of current regulations and their responsibilities regarding the hiring of disabled workers.