As a result of sustained injuries and the necessity to undergo medical treatment and rehabilitation, the assessor was absent at work for the time period longer that one year. On the basis of Polish law which enables state authorities to dismiss the employee when absent at work more than 12 months, Public Prosecutor General took the decision to resolve official relationship with the assessor. Moreover, when dismissing her, the employer claimed that she was unable to perform prosecutor’s work due to the legally valid medical certificate confirming it. The decision to resolve the official relationship with her was taken in compliance with binding polish law, however taking into consideration all circumstances of the case it must be stated that the decision to dismiss her from work was discriminatory due to her disability.
Thus, the assessor brought an action to the court claiming discriminatory treatment in employment, asking for damages and restoration to work. The case is now pending before one of the District Court in Poland. Moreover, Helsinki Foundation for Human Rights submitted an official letter to Public Prosecutor General in which the Foundation indicated that the decision to dismiss was of discriminatory character and therefore appealed to revoke it. In reference to this letter, Public Prosecutor General informed the Foundation that he will not revoke his decision as it was made in agreement with binding law. However, he did not take an attitude towards the crucial question asked by the Foundation: does the enabled person may work as a prosecutor? Although reiterating this question, Helsinki Foundation for Human Rights has not received the answer yet.
The case is of a great importance in Poland as it highlight an important social issue. On the basis of this case a fundamental question arises: whether on the grounds of Polish law capability to walk is a sine que non condition for performing a job as a prosecutor?
In the opinion of the Helsinki Foundation for Human Rights, the most important functions performed by a prosecutor may be considered as an intellectual work. Therefore, loss of walking ability should not cause the termination of official relationship. The main requirements for becoming a prosecutor should be the appropriate level of qualifications and experience. De lege lata, there are several regulations which allow adaptation of prosecutor’s responsibilities to the needs and situation of a disabled person. For instance, employer has an exclusive competence to distribute work activities among other prosecutors as well as to determine rules of substituting of the public prosecutors. Furthermore, working time strictly depends on the dimension of the tasks given to the prosecutor. There is also a possibility for a prosecutor to hire an assistant. The assistant is, inter alia, empowered by the written authorization to undertake various activities, including those conducted in the course of preparatory proceedings, such as retention of things or search and inspection of locus delicti. These are activities that a disabled person can perform, but which may augment some difficulties.
It is worth noting that the exercise of all above mentioned possibilities under current law does not detract from the dignity of the prosecutor’s office nor it undermine the seriousness of the duty to guard the office and to avoid anything that might diminish the prosecutors impartiality, which is required on the ground of prosecutors Act.
Irmina Pacho – lawyer in Strategic Litigation Program of Helsinki Foundation for Human Rights
