Breaching the law that requires reserving job positions for disabled persons not only entails statutory penalties but now may also bar a company from the possibility of opting for a significant public contract.
Since this past March 2018, according to the new wording of the Public Sector Contracts Law, there is a statutory prohibition on entering into contracts with the public authorities and other public bodies and entities for companies that, among other matters, do not evidence that they comply with the requirement to reserve at least 2% of their job positions for disabled persons, or have implemented exceptional alternative measures on the terms established by regulations.
In this regard, it is important to recall that, in accordance with the General Law on the rights of disabled persons and their social inclusion, this obligation to reserve job positions already applies to companies with 50 or more workers. As an exception, companies are exempt from this statutory obligation, in whole or in part, through potential agreements reached in industry-wide collective bargaining at the national level and, failing that, at a lower level, or at the voluntary option of the employer duly notified to the labor authority, provided that, in both cases, the employer applies alternative integration measures that will, in any event, be exceptional and determined by regulations.
Beyond the national legal framework, at European level, it is important to note that the process for recognizing social clauses in public procurement such as the one mentioned above culminated with the procurement directives of 2014, including most notably Directive 2014/24/EU, of February 26, 2014, on public procurement, which contains advances in the inclusion of social aspects in procurement.
At the national level, the National Reforms Program for 2017 lays down the obligation to promote social inclusion. Specifically, with respect to disabilities, the program includes an action plan in the Spanish disability strategy for the years 2014-2020.
These legal provisions at national level also stem from the provisions of the Spanish Constitution which establishes, among the principles governing social and economic policy, the need for policies aimed at integrating people with physical, mental and sensory disabilities, and at fostering the integration of individuals under conditions of equality before the law and non-discrimination.
Likewise, the Workers’ Statute guarantees non-discrimination by reason, among others, of disability, and the Labor and Social Security Infringements and Penalties Law establishes as a serious infringement the failure to reserve 2% of job positions for disabled persons or, otherwise, the existence of alternative measures. The infringement is punishable with a fine of between €626 and €6,250.
Public Sector Contracts Law
In this context in which the Spanish parliament has introduced this requirement that would preclude the possibility of entering into public contracts, note should be taken of the creation of the Inter-ministerial Commission for the inclusion of social standards in public procurement.
The purpose of this Commission is to guarantee the inclusion of social standards in public procurement, such as the impossibility of entering into contracts with the public authorities or other public bodies or entities if companies do not evidence that they have reserved 2% of their job positions for persons with disabilities or, failing that, have implemented exceptional alternative measures.
In short, this obligation, beyond the fact that it may lead to punishable labor law infringements where it applies, should be taken into account not only to avoid the imposition of potential penalties, but also to avoid situations where a company is not able to opt for a significant public contract because it does not satisfy this requirement to reserve job positions or to implement exceptional alternative measures aimed at the integration of persons with disabilities.
Garrigues Labor and Employment Department