SERBIA: Who evaluates Employee’s Work Ability?
Newsletter 149
Employees with health issues, as determined by the relevant health authority, are not permitted to perform jobs that could exacerbate their condition or endanger those around them. The law stipulates that employers must provide these employees with suitable work in line with their remaining abilities. If the employer cannot provide such work, the employee is considered redundant, and the employment relationship is terminated with severance pay.
Therefore, the key document for the employer’s actions in accordance with these obligations is the employee’s work ability assessment, carried out by the relevant health authority as part of a legally conducted procedure.
In employment law practice, there have been dilemmas and differing interpretations regarding which authority is competent to assess employees’ work ability. Should this be a specialist doctor, the occupational health service or the National Employment Service?
According to the Law on Professional Rehabilitation and Employment of Persons with Disabilities, the National Employment Service is the competent authority for assessing work ability.
The aforementioned law stipulates that requests for work ability assessments are submitted to the relevant organisational unit of the National Employment Service, while opinions and assessments regarding work ability and the possibility of employment or job retention are provided by the expert evaluation body of the Republic Pension and Disability Insurance Fund. Following the expert evaluation, the National Employment Service makes a decision regarding the assessed work ability and the possibility of employment or job retention.
This has also been confirmed by the Supreme Court in its Rev2 331/2020 ruling, dated 3 September 2020. The ruling emphasised that decisions to terminate employment relationships due to an employer’s inability to provide suitable work in line with an employee’s remaining work ability are unlawful if a work ability assessment has not been carried out as prescribed by the Law on Professional Rehabilitation and Employment of Persons with Disabilities.
For more information on this topic, please contact us via email at jelena.todorovic@tsg.rs or office@tsg.rs.
