The senior judge of Labour Court no. 1 of Teruel, in proceedings 114/2020, upheld the claim presented by the doctors’ union FASAMET, against the Aragon Health Service (Servicio Aragonés de Salud), Aragon Institute for Social Services (Instituto Aragonés de Servicios Sociales) and the Aragon General Council (Diputación General de Aragón). The ruling declares the violation of the fundamental rights of the workers/public employees in terms of the prevention of occupational risks, when they risked their lives, physical integrity and their health. It sentences the defendants to re-establish said rights and provide appropriate PPE.
The purpose of the proceedings was to determine whether the actions carried out by the defendants in relation to the provision of sufficient, appropriate and authorised PPE to deal with the COVID-19 to their personnel, implied a breach of the obligations inherent to them in occupational risk prevention and, at the same time, a violation of the fundamental rights to life and physical integrity as well as the right to health recognised in Articles 15 and 43, respectively, of the Spanish Constitution.
The defendants, apart from making three procedural pleas, answered the claim suggesting, inter alia, that health does not imply a fundamental right; that the application of the regulations on the prevention of occupational risks is dubious and that in any case has not been infringed; that they were faced with a case of force majeure or catastrophic risk pursuant to Art. 1105 of the Civil Code; that the level of infection of the Teruel health professionals was lower in comparison with other countries.
In light of what was alleged by the defendants, let us focus this analysis on the conclusions reached by the senior judge regarding the four points mentioned above.
Health as a fundamental right
The claim not only deals with the violation of the right to health (Art. 43 of the Constitution), but also the right to life and physical integrity, rights that are indeed recognised as fundamental in Art. 15 of the Constitution. In addition, the claim emphasises that, in accordance with the doctrine of the Constitutional Court, the fundamental right to physical integrity could be understood as violated if there were a serious and real danger or effective harm to health.
Making reference to substantial jurisprudence in the matter, the senior judge concludes that the allegation that health is not a fundamental right and as such, there is no violation, cannot be upheld.
Applicability of the regulations on prevention of occupational risks
The senior judge concludes that it is not controversial that there is a labour, public servant or similar relationship of the personnel with the Public Administration. Additionally and in consequence, the regulations on matters of prevention of occupational risks are applicable to them, more so if it is taken into account that the defendants themselves provided PPE to protect the health and safety of their workers in accordance with the regulation whose exclusion they claim.
Force majeure or catastrophic risk
The senior judge investigates whether, de facto, the COVID-19 crisis constitutes a case of force majeure, unforeseeable and inevitable.
It is acknowledged in the ruling that the situation generated by COVID-19 is truly exceptional and has affected many countries. Nevertheless, the fact que the state of alarm was declared by the government does not imply that we are de facto dealing with a case of “force majeure” which per se does not eliminate the fundamental rights of citizens or that it exempts employers from liabilities for infringements arising from obligations which, in matters of health and safety, are inherent to them. What is more, the grounds of Royal Decree-Law 463/2020 which declares the state of alarm affirms that said declaration in no case implies the suspension of any fundamental right and, as such, the regulations on matters of prevention of occupational risks was, and still is, of obligatory compliance for employers.
Regarding this point, we wish to call the reader’s attention to the fact that the ruling, in its Proven Facts, as well as in its Legal Grounds, includes a perfectly detailed chronology in which information, alerts, recommendations, declarations of pandemics, forms of spreading and infection, safety measures to adopt, etc. It thus concludes that prior to the declaration of the state of alarm by the government, there was already sufficient data offered by the WHO and the European Union, the media, reports, etc. to take the necessary measures so that the Administration could obtain and provide sufficient PPE to protect the health and safety of its personnel.
Infection rate in health personnel: risk at work and violation of fundamental rights
The ruling concludes that it is proven that the higher the contact with COVID-19, the higher the risk of infection. As such, it is the health personnel who are closest to the infected persons who are exposed to a higher viral load and are more susceptible to infection. For this reason, numerous reports already warned of the necessity of providing health personnel with sufficient means of protection precisely to contain said exposure to the increased viral load and consequently the risk of infection.
The lack of provision of PPE to health personnel has implied a lack of protection for them, which has compromised and risked their health and physical integrity. This risk was foreseeable and proves, according to the ruling, a lack of diligence on the part of the defendants. Additionally, working under such conditions implies a violation of their fundamental rights, since the lack of supply of PPE and their lack of provision to the personnel left them unprotected when facing the virulence of COVID-19. This liability is not minimised by the insufficiency of personal protective equipment on the Spanish market or the centralisation of the purchase of health materials by the Ministry of Health.
Although the ruling is not yet unappealable and will most likely be appealed before the High Court of Justice of Aragon, is it evident that we are dealing with the first judicial blow to the health management of the COVID-19 crisis from the perspective of the labour jurisdictional order. The arguments in this ruling will probably be taken into account not only in other Spanish territories but also in jurisdictional orders in which judges will determine who shall respond for the liability in question.