The Supreme Court has established in a ruling that the injury of a cleaning worker – the rupture of a rotator cuff of the shoulder – must be considered as an occupational disease although the regulations do not expressly collect it. The social chamber corrects the Asturian judges and recognizes the right of this woman to have her illness related to her work while criticizing the fact that the 2006 Law contemplates a majority of injuries linked to masculinized professions compared to a minority of professions with greater female presence.
The double time trial of the “kellys”
The social room has studied the case of a woman, a cleaning worker, who in 2017 went to Social Security requesting a leave of absence for the rotator cuff tear in her left shoulder that she associated with her work as a cleaner. A decade earlier she had already suffered a similar injury to her other shoulder. The INSS recognized that it was a common and non-professional disease, a decision confirmed by the Asturian Superior Court of Justice before reaching the Supreme Court.
The judges of the territorial court understood that, based on what the 2006 Royal Decree on occupational diseases and the Cleaning Sector Convention say, a rotator cuff tear cannot be considered a work-related disease. In his position, the judges said, “there is no need to work with the arms above the horizontal in abduction or flexion movements or tensing the tendons and subacromial bursa.”
The Supreme Court, with the support of the Prosecutor’s Office, corrects this interpretation and establishes that an injury like the one this woman had must be considered a work-related illness for two reasons: because cleaning work does affect, for example, the tendons. But also because a reading of the case with a “gender perspective” based on the 2007 equality regulations leads the judges to patch up the gaps in the list of occupational diseases where masculinized jobs predominate.
Regarding the first, the social room explains that it is not the first time that it recognizes an occupational disease in a woman who is not expressly included in the list of the Royal Decree of 2006. It did so, for example, with a cleaner with syndrome of the carpal tunnel, with a hairdresser with subacromial syndrome or a geriatrician with epicondylitis. In addition, she explains, in Galicia the courts agreed in a similar case with a cleaning worker at an institute in the town of Verín in Ourense.
But the Supreme Court also explains that the gender perspective and the application of the 2007 law on equality between men and women leads, once again, to patch up labor legislation on this point. The table of occupational diseases of 2006 includes “masculinized professions such as painters, plasterers, structure assemblers, tanners, mechanics, sheet metal workers, boilermakers, bricklayers”, some with “balanced presence of workers of both sexes” but “very feminized professions are not contemplated such as those linked to the health and socio-health sector, cleaning and administrative tasks”.
Not including in this Royal Decree the cleaning profession as potentially affected by an occupational disease supposes, says the Supreme Court, “indirect discrimination” against women. “Strongly masculinized” professions benefit “from the presumption that forced postures and repetitive movements at work are carried out in them”, in the cleaning profession, “strongly feminized” for the diagnosis of occupational disease “it is required to prove the performance of these movements”, denounce the judges of the social.