Notificación del estado de discapacidad. ¿Obligatorio o facultativo en materia laboral?.

Abstract

Throughout time in Ecuador, being a guaranteeing country, several rights, principles, and normative bodies have been included to protect and watch over the rights of people. Thus, the Constitution of the Republic of Ecuador deals with the labor inclusion of people with disabilities. In 2012 the Organic Law on Disabilities was issued, in which, in its article 51 mentions labor stability and that, in case of untimely dismissal of persons with disabilities, they are entitled to compensation, but what is not contemplated in the Disability Law or in the Labor Code, is whether the employee must notify in a mandatory or optional manner the state of disability or if he/she is in charge a person with disabilities. In 2021 a cassation sentence was issued by the Labor Chamber of the National Court of Justice in which the notification of the disability status was discussed, and whether the indemnity corresponding to the disability law for untimely dismissal is applicable. The court resolved that the payment of the indemnity is applicable whether the employer has been notified of the disability condition, arguing that it is up to the employer to investigate and seek the necessary means to know about it. That being said, the employee must give mandatory notice of the disability status or if he/she is in charge of a person with a disability, to avoid a possible conflict between constitutional rights.