Communicated on 27 April 2016

THIRD SECTION

Application no. 40075/14 Aleksandr Nikolayevich MOROZOV against Russia lodged on 23 May 2014

STATEMENT OF FACTS

The applicant, Mr Aleksandr Nikolayevich Morozov , is a Russian national who was born in 1970 and lives in Moscow. He is represented before the Court by Mr G. Avetisyan , a lawyer practising in Moscow.

A. The circumstances of the case

1. Accident at work and the applicant ’ s suspension from work

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

The applicant has been blind since childhood. In 1994 he completed training in therapeutic massage at Kislovodsk Medical School for the Visually Impaired no. 2. In 2008 he obtained the highest professional qualification in therapeutic massage.

For nineteen years the applicant worked as a masseur in Moscow City Clinic no. 227 (“Clinic no. 227”). His working conditions were such as to allow him to carry out his routine work safely. In particular, he was the only masseur in the room located on the second floor, the toilet and cafeteria were located close by so that he did not have to negotiate crowded corridors, and his wife was allowed to assist him with paperwork.

On 29 March 2012 the applicant underwent an examination at the Federal Medical and Social Expert Committee and was given a plan for an individual rehabilitation programme. He was recommended professional rehabilitation in specific conditions with the use of aids for the blind.

In April 2012 Clinic no. 227 was merged with Moscow City Clinic no. 9 (“Clinic no. 9”). Initially it refused to employ the applicant on account of his disability, stating that it was unable to provide him with safe working conditions. However, after apparently being threatened with litigation it eventually employed him. According to an order issued on 24 April 2012 by Clinic no. 9, the applicant was allowed to stay at home pending the arrangement of a suitable workplace for him.

The applicant returned to work on 14 May 2012 and started working in a different building which, according to him, was still not suitable for a blind person. In particular, the corridors were not equipped with either railings or reflective paths, and the toilets and cafeteria were a considerable distance from his room. He regularly complained of unsuitable working conditions. Over the following ten months he had to move room four times, yet none of the workplaces offered fully met his needs. Furthermore, he alleges that he was a victim of pressure from the administration as a consequence of his complaints.

According to the applicant, the clinic administration eventually allowed him to have meals and hot drinks in his room, although this was against health and safety regulations.

On 13 March 2013 the applicant accidentally spilled scalding water from the kettle on his hand while boiling water for tea in his room. As he was unable to independently seek medical help, he was taken to a doctor by patients of the clinic.

An inspection was conducted by the clinic administration.

On 15 March 2013 it drew up a report on the accident (“Report no. 1”), to the effect that the applicant was responsible as he had wrongfully used an electrical kettle in the workplace in breach of health and safety regulations. Report no. 1 also recommended that accident prevention training be provided to all employees.

On the same date the clinic administration drew up another report, which said that the accident was not related to the performance of the applicant ’ s work duties. As a consequence, he was not covered for insurance purposes.

On 14 March 2013 the clinic administration informed the applicant ’ s wife that she could no longer assist him. No other assistance was provided, despite him being unable to do paperwork on his own.

In a written statement dated 19 March 2013 addressed to the clinic administration the applicant contested Report no. 1.

On 12 April 2013, upon the applicant ’ s request, the Moscow Public Commission for the Disabled inspected the premises of Clinic no. 9 with regard to accessibility for the disabled. It found a number of deficiencies and recommended measures for their rectification.

Between April and October 2013 the applicant attended six training sessions on accident prevention, provided by the administration. Upon completion of the training he refused to sign a record to this effect. He stated that it would be impossible for him to comply with the health and safety regulations since the clinic administration refused to provide him with the minimum conditions that, taking into account his disability, would enable him to work. He also requested that the clinic administration provide him with adequate working conditions and an accident prevention training programme specially tailored to his disability. It appears that no measures were taken to this effect.

On 12 September 2013 the applicant was suspended from work without pay on the grounds that he had refused to sign the record on completion of the accident prevention training.

2. Court proceedings concerning working conditions

On 5 April 2013 the applicant instituted court proceedings against Clinic no. 9. He contested the findings of Report no. 1 arguing that because he was blind, he could not have been held responsible for the accident, which had been caused by the clinic administration ’ s failure to provide adequate working conditions for the visually impaired.

On 10 April 2013 he amended his claim, requesting that the court order Clinic no. 9 to provide him with adequate working conditions and pay him non-pecuniary damages.

On 2 October 2013 the Lyublinskiy District Court of Moscow dismissed the applicant ’ s claim. The court found, firstly, that his individual rehabilitation programme did not specify which particular conditions had to be provided by the employer. It further found that Clinic no. 9 was not a specialist institution using a disabled workforce and therefore Sanitary Rules no. 2.2.9.2510-09, adopted on 18 May 2009 by Decree no. 30 of the State Chief Medical Officer, were inapplicable. The court then held that, t aking into account that a competent commission had established that the applicant was unable to work in normal working conditions, and the fact that he had voluntarily entered into an employment relationship with Clinic no. 9, the latter could not be said to be under an obligation to provide the applicant with working conditions that would differ from those of other employees. Lastly, the court upheld the findings of Report no. 1 and found that the lack of mention of the applicant ’ s disability in the report did not invalidate it.

On 14 January 2014 the Moscow City Court upheld the decision on appeal. The appellate court observed, inter alia , that the first-instance court had not called into doubt the applicant ’ s employer ’ s duty to provide him with adequate working conditions. Yet such conditions had to correspond not to the applicant ’ s wishes, but to the individual rehabilitation programme. Although the applicant ’ s individual rehabilitation programme stated that he had to be provided with aids for the blind, it did not specify which particular aids were required.

3. Court proceedings concerning the applicant ’ s suspension from work

On 3 March 2014 the applicant contested his suspension from work before a court. He also claimed compensation for loss of earnings for the relevant period.

On 19 March 2014 the Lyublinskiy District Court of Moscow dismissed the claim on the grounds that the applicant had allowed the three-month statutory limitation period for lodging the claim to expire.

The applicant appealed.

On 10 June 2014 the Moscow City Court upheld the decision on appeal.

B. Relevant domestic and international law

1. Domestic law

Under Article 224 of the Labour Code an employer has to provide disabled employees with working conditions in accordance with their individual rehabilitation programme.

Federal Law no. 181-FZ on the Social Protection of the Disabled of 24 November 1995, as in force at the material time, states that an individual rehabilitation programme is a set of rehabilitation measures recommended by a competent federal agency aimed at restoring or compensating for a disabled person ’ s impaired physical functions and ability to carry out certain types of activity. An individual rehabilitation programme is compulsory for the State and municipal agencies as well as the organisations concerned, irrespective of their corporate form or type of property, unless the disabled person refuses to carry out some or all of the measures recommended (Article 11). Special workplaces for disabled people are to be provided by employers, taking into account their impaired functions and having regard to the requirements set in this respect by the competent State agencies. The minimum number of special workplaces for disabled employees is set by the competent agencies for each enterprise and organisation within the limits of the employment quota for disabled people (Article 22). Disabled employees are to be provided with the adequate working conditions in accordance with the individual rehabilitation programme, irrespective of the employer ’ s corporate form or type of property (Article 23).

Sanitary Rules no. 2.2.9.2510-09, which were adopted on 18 May 2009 by Decree no. 30 of the State Chief Medical Officer, set out workplace safety requirements for the disabled (section 1.1) which apply to all enterprises and organisations that employ disabled people, irrespective of their type of property, administrative subordination and economic sector (section 1.3). According to the Sanitary Rules, workplaces for blind employees have to be equipped with a system of aids that enable their orientation around the workplace. Technical equipment in the workplace must have aids for the blind that allow work to be carried out without visual control and the risk of injury (section 6.4.3).

2. International law

On 16 October 2009 Russia ratified the European Social Charter, revised on 3 May 1996. Article 15 of the Charter reads, insofar as relevant:

Article 15 – The right of persons with disabilities to independence, social integration and participation in the life of the community

“With a view to ensuring to persons with disabilities, irrespective of age and the nature and origin of their disabilities, the effective exercise of the right to independence, social integration and participation in the life of the community, the Parties undertake, in particular:

...

2. to promote their access to employment through all measures tending to encourage employers to hire and keep in employment persons with disabilities in the ordinary working environment and to adjust the working conditions to the needs of the disabled or, where this is not possible by reason of the disability, by arranging for or creating sheltered employment according to the level of disability. In certain cases, such measures may require recourse to specialised placement and support services;

3. to promote their full social integration and participation in the life of the community in particular through measures, including technical aids, aiming to overcome barriers to communication and mobility and enabling access to transport, housing, cultural activities and leisure.”

COMPLAINTS

1. The applicant complains that because his employer failed to provide him with adequate working conditions, he had to suffer inconvenience and humiliation in the workplace and eventually suffered an accident on 13 March 2013. He also complains that his working conditions did not improve after the accident, and that he was even held responsible. The applicant relies on Article 3 of the Convention.

2. The applicant also complains under Article 14 of the Convention in conjunction with Article 3 that he was treated less favourably than people with no disabilities. In particular, while the domestic law contains no provision to the effect that disabled people can only work in specialist institutions, Clinic no. 9 and the domestic courts effectively applied this reasoning, depriving him of the possibility to continue practising his profession.

QUESTIONS TO THE PARTIES

Having regard to the dismissal of the applicant ’ s claim to be provided with adequate working conditions in view of his disability:

1. Has there been a violation of the applicant ’ s right to respect for his private life, contrary to Article 8 of the Convention?

2. Has the applicant suffered discrimination in the enjoyment of his Convention rights on the grounds of his disability, contrary to Article 14 of the Convention read in conjunction with Article 8 (see I.B. v. Greece, no. 552/10, §§ 67-74, 3 October 2013)?