The Superior Court of Justice of the Canary Islands has confirmed the sanction imposed by the Labor Inspectorate on the Hesperia Hotel in Puerto Calero, which must pay 20,491 euros for a "serious infraction", for "not having carried out an ergonomic evaluation of the specific working conditions of the workers in the housekeeping department."
The sanction was imposed in 2017 after an inspection carried out at the hotel, but the company then appealed to the courts. Initially, the Social Court Number 3 of Arrecife partially upheld the appeal, although only in relation to the amount of the sanction. Thus, it reduced it to 2,046 euros, pointing out, among other things, that there was "little danger" in the jobs.
This point is precisely the one most refuted by the new ruling of the Superior Court of Justice of the Canary Islands, which has upheld the appeal filed by the Ministry of Employment of the Canary Islands Government against the first ruling. "The concept of dangerousness used by labor regulations has been formed without a gender perspective, excluding those feminized jobs such as that performed by room attendants," the ruling states. In this regard, it questions that ailments typical of that trade, such as carpal tunnel syndrome, have been recognized as occupational diseases in other "non-feminized" jobs, such as carpentry, but not in chambermaids.
"In the case at hand, it is appropriate to comply with the legal mandate to integrate the gender perspective in the application and interpretation of article 39.3 of the LISOS, regarding the graduation of the sanction imposed by the competent Administration," the ruling of the Social Chamber of the TSJC states, of which Judge Gloria Poyatos has been the rapporteur.
"Incongruent that non-compliance is a mitigating factor"
The judgment of first instance had also reduced the sanction based on the fact that there was no "total non-compliance" on the part of the company, given that it had carried out the risk assessment. However, the Ministry of Employment rejected that this should be used as a mitigating factor, since "what was ordered" in that evaluation was "not complied with" and considered it "incongruent that non-compliance constitutes a mitigating factor."
In addition, the new ruling also dismisses another of the arguments that the Social Court had taken into account, relating to the number of workers affected. When imposing the sanction, the Labor Inspectorate classified it as serious because it affected a total of 61 chambermaids, but the first ruling accepted the company's allegation that temporary staff had also been included in that count. However, the TSJC responds to this that the Law is "very clear in requiring the same level of protection for temporary workers as for permanent workers, as well as for all workers in indirect management forms of labor relations."
For this reason, the new ruling revokes the judgment of the Social Court and fully confirms the sanction that had been imposed on the company, which, among other things, alleged that it had not yet updated the ergonomic study because for several years it had outsourced this service through another company.
