THIRD SECTION

DECISION

Application no. 25284/16 Gloria RAVENTOS MARTINEZ against Spain

The European Court of Human Rights (Third Section), sitting on 16 March 2021 as a Committee composed of:

Georgios A. Serghides, President, María Elósegui , Peeter Roosma, judges, and Olga Chernishova, Deputy Section Registrar ,

Having regard to the above application lodged on 20 April 2016,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Ms Gloria Raventos Martínez, is a Spanish national, who was born in 1967 and lives in Sant Vicenç dels Horts (Barcelona). She is represented before the Court by Mr L. Ezquerra Escudero , a lawyer practising in Barcelona.

2 . The Spanish Government (“the Government”) were represented by their Agents, Mr. Francisco de A. Sanz Gandásegui and Mr Rafael-Andrés León Cavero , Representatives of the Kingdom of Spain to the European Court of Human Rights .

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . In 2003 the applicant was diagnosed with chronic migraines with “monthly incapacitating episodes”, as stated in the medical reports. It has been established as a proven fact – not disputed by any of the parties – that she never applied to the authorities to be recognised as a person with a disability in accordance with the Rights of Persons with Disabilities (Social Inclusion) Act (modified by Royal Decree 1/2013, of 29 November 2013).

5 . On 20 September 2007 the applicant started work as a “home-care worker” ( trabajador familiar ), first for the private company G.G. and afterwards for the private company C., once the latter acquired the former on 1 January 2012.

6 . At the time she was engaged the applicant notified her new employer of her condition. She submitted a medical report done on 24 August 2012 by San Juan de Dios Hospital in Barcelona, confirming her statements.

7 . Between March and May 2013 the applicant was absent from work on six different occasions, which in total amounted to fifteen days of absenteeism.

8 . On 12 June 2013 the applicant was dismissed “on objective grounds” ( extinción del contrato por causas objetivas ) under Article 52(d) of the Workers ’ Rights Act on the grounds that for the last two months the applicant had had an absenteeism rate of 38.46%, and a yearly rate of 14.67%.

9 . The dismissal letter read as follows:

“Between 29 March 2 and 27 May 2013 you were absent from work for a total of fifteen days owing to the following absences from work, both justified and unjustified.

...

Such absences amounted to 38.46% of the working days in two consecutive months, as from 29 March until 27 May 2013 you had a total of 288.6 scheduled working hours, corresponding to thirty-nine working days. Furthermore, the absences during the last twelve months, counting from 28 May 2012 until 27 May 2013, amounted to 14.67% of working days, since you had 1,665 scheduled working hours corresponding to 225 working days.

As you are perfectly aware, the working system established in the service is based on planning services where the schedule for attending the clients is previously established according to their needs. Any absence in providing the services may provoke a change in the level of assistance received by the client and it may even give rise to an alteration or disturbance of their routines.”

10 . On 19 June 2013 the applicant initiated proceedings before the Barcelona Labour Court no. 33, in which she requested that the court declare her dismissal null and void due to the unconstitutionality of Article 52(d) of the Workers ’ Rights Act, which she claimed breached Article 15 of the Spanish Constitution (right to life and physical and psychological integrity). To this end she applied for a judicial review of the constitutionality hearing before the Constitutional Court.

11 . On 17 September 2013 the Labour Court ruled (judgment 339/2013) in favour of the applicant, declaring the dismissal discriminatory and null. It specified that the applicant ’ s illness (chronic migraine) qualified as a disability and that Article 52(d) was not applicable in that case. Regarding the applicant ’ s application for a judicial review of the Act ’ s constitutionality, the Labour Court declared that the application was admissible; however the applicant ’ s right to an effective remedy and to have a resolution on the merits in a reasonable time obliged it to act as an interpreter of the Constitution and to issue a decision on the merits without reviewing the constitutionality pursuant to Article 5 of the Judiciary Act.

12 . The reasoning of the judge was based on the status as domestic law of European Union Council Directive 2000/78/CE, as interpreted by the rulings by the Court of Justice of the European Union C-13/05, of 11 July 2006 ( Chacón Navas ) and C-335/11, of 11 April 2013 (Ring). The judge of the Labour Court considered that under European Union law Spanish legislation was indirectly discriminatory against people with disabilities; and that disability should not be limited to officially recognised cases, but be defined instead in accordance with the United Nations Convention on the Rights of Persons with Disabilities. Article 1 of that Convention reads as follows:

“Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”

According to the judgment of the Labour Court, the limitations imposed on the applicant by her migraines placed her in this category.

13 . The respondent company lodged an appeal ( suplicación ) before the Catalonia High Court of Justice ( Tribunal superior de Justicia ). On 15 May 2014 the High Court (judgment 3548/2014) overturned the first-instance judgment, ruling that the applicant ’ s dismissal had not been due to her sickness but to the “number of recurrent short-duration absences”. The Court accepted the statement made by the company that only three of the six absences taken into account had been due to migraines. Therefore, the reason for the dismissal had been objective and not based on discrimination against a person who suffered from migraines. Additionally, the Court analysed the reasoning concerning European law and found that cases mentioned did not allow “disability” and “sickness” to be equated, and that there was no legal concept of disability in European law or the United Nations Convention. The High Court concluded that the Labour Court judge had exceeded his competences by creating a new interpretation of Spanish and European Union legislation. The applicable law was clear and there was no reason not to apply Article 52 of the Act.

14 . Lastly, the Catalonia High Court of Justice rejected the applicant ’ s request for a judicial review of constitutionality on the grounds that the first ‑ instance court had already rejected such application.

15 . The applicant lodged a plea of nullity with the Catalonia High Court of Justice, contesting the reasoning given by the second-instance court as to the rejection of her application for a judicial review of constitutionality. On 30 July 2014 the plea of nullity was rejected. The High Court observed that the Labour Court had rejected the applicant ’ s application and that none of the parties had appealed. All things considered, the court reiterated that the decision to admit a judicial review of constitutionality belonged to the judge.

16 . The applicant lodged an amparo appeal with the Constitutional Court, relying on Articles 14, 15 and 24 of the Constitution (providing for equality before the law, right to life and physical and psychological integrity, and the right to judicial protection). On 3 November 2015 the Constitutional Court declared the applicant ’ s amparo appeal inadmissible on the grounds that no fundamental right had been violated.

17 . The Constitutional Court Act 2/1979 of 3 October provides in its relevant parts as follows:

Article 35

“1. Where a judge or a court, proprio motu or at the request of a party, considers that legal instrument the force of law which is applicable to a case and on which the validity of the ruling depends may be contrary to the Constitution, the judge or court shall forward the issue for judicial review before the Constitutional Court in accordance with the provisions of this Law.

2. The judicial body forwards the matter only on completion of the proceedings and within the prescribed deadline for delivering its judgment, or the appropriate judicial resolution, by specifying the law or other legal instrument with the force of law whose constitutionality is contested and the constitutional provision that is said to have been violated, and by indicating with supporting evidence the extent to which the pending judgment depends on the validity of the law in question. Before delivering its final judgment, the judicial body shall hear argument from the parties and the public prosecutor ’ s office so that, within a joint deadline of ten days, which may not be extended, they can put forward such arguments as they see fit regarding the appropriateness of a judicial review of constitutionality, or on its content, whereupon the judge shall give a ruling without further procedure within three days. That ruling may not be appealed against. However, the question of constitutionality may be raised again at successive stages of the proceedings or in higher courts until such time as a judgment not amenable to appeal has been delivered.

3. The application for judicial review of constitutionality shall cause the temporary suspension of the proceedings on judicial procedure until the Constitutional Court decides on its admission.”

18 . Royal Decree 2/2015, of 23 October, which approves the text of the Workers ’ Rights Act, reads as follows:

Article 52

“A contract may be terminated:

...

d) Owing to absences from work, even where those are justified but intermittent, when they amount to 20% of the working days of two consecutive months, provided that the total rate of absenteeism exceeds 5% during the previous twelve months; or 25% for four discontinuous months within a twelve-month period, provided.

For the purposes of the preceding paragraph, absences due to strike action throughout the legal duration of this, the exercise of workers ’ legal representation activities, work accidents, maternity, risk during pregnancy or breastfeeding, illnesses caused by pregnancy, childbirth or breastfeeding, paternity, leave and holidays, and...on-occupational illnesses or accidents shall not be counted as absences when the admission to treatment has been granted by the official health services and has a duration of more than twenty consecutive days ; nor shall absences motivated by a physical or psychological situation arising from gender violence attested to by social services or healthcare services, as applicable, be counted.

Absences that arise from a medical treatment of cancer or serious illness shall not be counted either.”

19 . On 16 October 2019 the Spanish Constitutional Court, analysing an unrelated appeal, has declared Article 52(d) of the Workers ’ Rights Act to be in conformity with the Spanish Constitution (judgment 118/2019).

20 . The Single Article of Royal Decree 4/2020 of 18 February repealed the provision concerning objective dismissal for failure to attend work as set out in Article 52(d) of the consolidated text of the Statute of Workers Rights, adopted by Royal Decree 2/2015 of 23 October.

COMPLAINTS

21 . The applicant complained under Article 1 of Protocol No. 12 to the Convention that her dismissal had been discriminatory in so far as she was a person with a disability.

22 . She further complained, under Article 6 § 1 of the Convention, that the refusal of the national courts to refer her application for a judicial review of constitutionality to the Constitutional Court had breached her right to a fair trial.

THE LAW

23 . The applicant alleged a violation of Article 1 of Protocol No. 12 of the Convention. This Article reads as follows:

“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”

24 . The Government submitted that there had been no interference with the applicant ’ s human rights, as the dismissal had not exclusively been based on the migraines suffered by the applicant and therefore could not be considered discriminatory. Furthermore, the Government submitted that Spanish legislation granted protection to people with disabilities, but the applicant had never tried to be officially recognised as such.

25 . The applicant submitted that she had communicated her situation with respect to the migraines to the employer when she had started working for the company, and that was supported by a report issued by San Juan de Dios Hospital in Barcelona on 24 August 2012 (see paragraph 6 above).

26 . The Court reiterates that a difference in treatment may raise an issue from the point of view of the prohibition of discrimination only if the persons subjected to different treatment are in a relevantly similar situation, taking into account the elements that characterise their circumstances in the particular context. The Court notes that the elements which characterise different situations, and determine their comparability, must be assessed in the light of the subject-matter and purpose of the measure which makes the distinction in question (see Fábián v. Hungary [GC], no. 78117/13, § 121, 5 September 2017).

27 . Not every difference in treatment will amount to a violation of Article 1 of Protocol No.12. Firstly, the Court has established in its case-law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 or Article 1 of Protocol No. 12. Secondly, a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Finally, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Fábián , cited above, §§ 113-14; see also I.B. v. Greece , no. 552/10, § 78, 3 October 2013).

28 . In the present case, the applicant considers that she has been discriminated because she was treated differently than a person with disability. It is not disputed between the parties that the applicant has never sought disability status, which could arguably accord her higher protection under the labour law. It also does not appear in the case at hand that the applicant has been in a position that would be sufficiently similar to those with a recognised disability, as the domestic courts have also noted (compare and contrast with I.B. v. Greece , cited above, § 76). However, the Court is not obliged to explore whether the applicant was or was not in a situation relatively similar to the persons with disability as, in any event, the applicant was dismissed in application of a legal provision for being absent from work for unjustified reasons. On 15 May 2014 the High Court of Catalonia established that only three out of six absences in question were due to the applicant ’ s illnesses, while the remaining absences were taken not on the account of the illness (see paragraph 13 above).

29 . Noting this well-reasoned conclusion of the domestic courts, which was the result of adversarial proceedings (see García Ruiz v. Spain [GC], no. 30544/96, § 28-29, ECHR 1999 ‑ I), the Court considers that the dismissal of the applicant was based exclusively on her absenteeism rate, and not on the alleged difference in treatment which could give rise to a complaint of discrimination.

30 . Therefore, the Court considers that in so far as the reasons for her dismissal were not based on grounds that could give rise to a comparison with other persons in a similar situation, the complaint of discrimination is manifestly ill-founded.

31 . The applicant ’ s complaint under Article 1 Protocol No. 12 must therefore be declared inadmissible pursuant to Article 35 § 3 (a) of the Convention.

32 . The applicant complained of a violation of Article 6 § 1 of the Convention, which reads as follows:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”

33 . The Government asserted that there had been no violation of Article 6 of the Convention. The Government considered, in any event, that the applicant had obtained a reasoned response in the relevant rejection, so that no violation of Article 6 of the Convention could be found.

34 . The applicant claimed that there had been a breach of Article 6, as the High Court of Justice of Catalonia had not responded to the application related to the judicial review of constitutionality. The High Court of Justice, when hearing the appeal lodged by the company, refused to examine the constitutionality question and, in her view, had left open the question of whether the provisions applied had been contrary to the right to physical integrity recognised in the Constitution.

35 . The Court reiterates that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic law (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 49, 20 October 2011). Hence, the Court ’ s role is not to resolve disputes over the interpretation of domestic law regulating access to a court but rather to ascertain whether the effects of such an interpretation are compatible with the Convention (see Zubac v. Croatia [GC], no. 40160/12, § 81, 5 April 2018).

36 . In particular, the Court has pointed out that Article 6 § 1 requires the domestic courts to give reasons, in the light of the applicable law, for any decision refusing to refer a question for a preliminary ruling before the European Court of Justice (see Vergauwen v. Belgium ( déc .), no. 4832/04, §§ 89-90, 10 April 2012). The Court considers that this approach can be applied in so far as an application for a judicial review of constitutionality before the Constitutional Court is concerned. Domestic courts must therefore indicate the reasons why they have found that the application is irrelevant, or that the correct application of the constitutional provision is so obvious as to leave no scope for any reasonable doubt. When the Court hears a complaint alleging a violation of Article 6 § 1 on that basis, its task consists in ensuring that the impugned refusal has been duly accompanied by such reasoning, bearing in mind that it is not for the Court to examine any errors that might have been committed by the domestic courts in interpreting or applying the relevant law (see Dhahbi v. Italy , no. 17120/09, § 31, 8 April 2014, and Avotiņš v. Latvia [GC], no. 17502/07, § 110, ECHR 2016).

37 . In the present case, the application for a judicial review of constitutionality was rejected by the courts under Article 35(1) of the Constitutional Court Act, which allowed them to decide whether the matter should go before the Constitutional Court or not. The High Court of Catalonia rejected the application for a judicial review of constitutionality on the grounds that cannot be considered to have been arbitrary or unfair given its factual findings in the present case (see paragraph 15), and as far as the arguments brought by the applicant which were relevant to the resolution of the case were duly examined. Finally, the applicant ’ s amparo appeal based on the same factual circumstances has been rejected by the Constitutional Court in October 2019 (see paragraph 20 above).

38 . It is also worth noting that the Spanish Constitutional Court, analysing a subsequent appeal, has declared Article 52(d) of the Workers ’ Rights Act to be in conformity with the Spanish Constitution (judgment 118/2019 of 16 October 2019). Additionally, Royal Decree 4/2020, of 18 February, repealed the objective dismissal for failure to attend work established in Article 52(d) of the revised text of the Workers ’ Rights Act, approved by Royal Decree 2/2015, of 23 October (see paragraph 21 above).

39 . All in all, it follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 8 April 2021 .

Olga Chernishova Georgios A. Serghides Deputy Registrar President