Disability and Employment A Contemporary Disability Human Rights Approach Applied to Danish, Swedish and EU Law and Policy

by Ventegodt Liisberg, Maria

• ISBN13: 9781780680286
• ISBN10: 1780680287
• Edition: 1st
• Format: Paperback
• Copyright: 2011-09-20
• Publisher: Intersentia

Summary

This book examines the evolving principles of disability human rights law in the field of employment and applies them to Danish, Swedish and EU law and policy. The book asks firstly what constitutes a contemporary disability human rights approach in the field of employment. Based on an analysis of the newly-adopted UN Convention on the Rights of Persons with Disabilities and present-day interpretations of international and European human rights instruments, four key requirements are identified. Secondly, the book compares Danish and Swedish employment law and policy, and their compliance with the contemporary disability human rights approach. In addition, EU law and policy in the field of disability employment law and policy is examined, and it is asked, inter alia, whether the 'flexicurity' model promoted by the EU is consistent with the contemporary disability human rights approach. The comparison of Danish and Swedish law and policy is done on the basis of legal sources and statistical information on the use and effects of different laws and policies. The comparison concentrates on four different areas of employment law and policy: disability equality, employers' obligations towards employees with disabilities and reduced working capacity, employment promotion for unemployed persons with disabilities and income replacement for persons with disabilities outside the labour market. The comparison shows that the main difference between Danish and Swedish disability employment law lies in the level of employers' obligations towards employees with disabilities and reduced working capacity under employment protection law and health and safety law. It is argued that a high level of employers' obligations leads to more inclusive general structures in the labour market in Sweden and constitutes the main explanation for the extreme difference in employment rates for persons with disabilities and reduced working capacity in Denmark and Sweden. Book jacket.

Table of Contents

Acknowledgements	p. v
List of Abbreviations	p. xv
Introduction	p. 1
Introduction	p. 3
Research Questions and Purposes	p. 5
Methodology	p. 6
Scope and Structure	p. 7
Some Definitions	p. 10
Disability Employment in Denmark and Sweden in Figures	p. 11
This Thesis in the Context of Existing Research	p. 14
Conclusion	p. 15
Analytical Framework	p. 17
Human Rights	p. 19
The Contemporary Disability Human Rights Approach	p. 19
Methodology for Determining the "Contemporary Disability Human Rights Approach"	p. 20
From the End of World War II until the End of the 1960s - Formal Equality and the Medical Model of Disability	p. 23
Models of Equality and Disability	p. 23
The United Nations	p. 24
The Council of Europe	p. 27
From the 1970s until 2000s - Substantive Difference Equality and the Minority Model of Disability	p. 28
The Models of Equality and Disability	p. 28
The United Nations	p. 31
The Council of Europe	p. 36
European Convention on Human Rights	p. 36
European Social Charter	p. 44
Current trends - Substantive Diversity Equality and Social Universality Model of Disability	p. 47
The Models of Equality and Disability	p. 47
TheUnitedNations	p. 51
The Council of Europe	p. 55
The Involvement of Civil Society and Social Partners	p. 55
Involvement of Civil Society	p. 56
Involvement of Social Partners	p. 58
Conclusion	p. 59
gal Status of Human Rights in Denmark and Sweden	p. 60
Human Rights Protection under Domestic Law	p. 61
Legal Status of International Human Rights Treaties	p. 63
National Disability Action Plans	p. 67
Conclusion	p. 69
Conclusion	p. 69
EU and Domestic Law and Policy	p. 71
EU Law and Policy	p. 73
Introduction	p. 73
Development of EU Disability Policies and Laws	p. 73
The Early Years from Treaty of Rome to the Mid-1970s	p. 73
Mid-1970s to the Treaty of Amsterdam	p. 74
From the Amsterdam Treaty and Onwards	p. 75
Conclusion	p. 80
The EU and Human Rights Protection of Persons with Disabilities	p. 81
General Human Rights Instruments	p. 81
CRPD	p. 87
Conclusion	p. 89
Employment Equality Directive	p. 89
Definition of Disability	p. 91
Models of Disability	p. 91
Delimitation of the Concept of Disability	p. 92
Definition of Disability and the 'Causal Link'	p. 95
Conclusion	p. 97
Direct Discrimination	p. 97
Indirect Discrimination	p. 103
Reasonable Accommodation	p. 106
What are "Appropriate Measures"?	p. 108
Who is Entitled to Reasonable Accommodation and in Which Situations?	p. 109
Limitations on the Duty to Accommodate	p. 110
Reasonable Accommodation, Direct and Indirect Discrimination and Positive Action	p. 112
Conclusion on Reasonable Accommodation	p. 115
Harassment and Instruction to Discriminate	p. 116
Scope of Application	p. 116
Burden of Proof	p. 119
Positive Action	p. 120
Definition of Positive Action	p. 121
ECJ Case Law on Positive Action	p. 122
Disability-Related Positive Action	p. 124
Remedies and Sanctions and Victimisation	p. 126
Conclusion on Employment Equality Directive	p. 128
Employers' Obligations	p. 128
Protection Against Dismissals	p. 129
Hard-law on Protection Against Dismissals	p. 129
Soft-law on Protection Against Dismissals	p. 130
Health and Safety	p. 130
Hard-law on Health and Safety	p. 131
Soft-law on Health and Safety	p. 135
Conclusion on Employers' Obligations	p. 136
Employment Promotion	p. 136
Hard-law on Employment Promotion	p. 137
Soft-law on Employment Promotion	p. 140
Conclusion on Employment Promotion	p. 141
Income-Replacement Benefits	p. 141
Hard Law on Income-Replacement Benefits	p. 142
Soft-law on Income-Replacement Benefits	p. 146
Conclusion on Income-Replacement Benefits	p. 147
Involvement of Civil Society and Social Partners	p. 147
Civil Society	p. 148
Social Partners	p. 150
Conclusion	p. 153
Legal Status of Denmark and Sweden under EU Law	p. 153
Conclusions	p. 155
Equality Law and Policy	p. 159
Introduction	p. 159
Contemporary Disability Human Rights Approach	p. 159
Non-Discrimination and Equality	p. 159
Definition of Disability	p. 162
Positive Action	p. 163
Conclusion	p. 167
Overview of Danish and Swedish Equality Law	p. 167
Definition of Disability	p. 171
Danish Definition of disability	p. 171
Swedish Definition of Disability	p. 177
Conclusion	p. 180
Direct Discrimination	p. 181
Less favourable treatment	p. 182
Comparable Situation	p. 182
Causal Link Between Disability and the Differential Treatment	p. 187
Exceptions	p. 190
Conclusion	p. 192
Indirect Discrimination	p. 192
Indirect Differential Treatment	p. 193
Objective Justification Clause	p. 194
Reasonable Accommodation Clause	p. 196
Conclusion	p. 198
Reasonable Accommodation	p. 198
Meaning of "Reasonable Accommodation"	p. 199
What are "Appropriate Measures"?	p. 200
Who is Entitled to Reasonable Accommodation and in Which Situations?	p. 203
Limitations on the Duty to Accommodate	p. 207
Reasonable Accommodation, Direct and Indirect Discrimination and Positive Action	p. 212
Conclusion	p. 215
Scope of Application	p. 215
Employer-Employee Relationship	p. 216
Membership of Workers' or Employers' Organisations	p. 218
Armed Forces	p. 219
Self-Employment	p. 219
Education and Training	p. 220
Related Areas of Transport, Infrastructure and Social Security	p. 220
Conclusion	p. 221
Positive Action	p. 221
Public Employers	p. 223
Private Employers	p. 225
Conclusion	p. 227
Conclusion	p. 228
Employers' Obligations	p. 231
Introduction	p. 231
Contemporary Disability Human Rights Approach	p. 232
Employers' Obligations Towards Employees with Disabilities and Disability-Related Reduced Working Capacity	p. 232
Protection Against Unfair Dismissals	p. 237
Dismissals Due to Shortage of Work	p. 239
Conclusion	p. 240
Dismissal Due to Disability-Related Reduced Working Capacity	p. 241
Material Limitations	p. 242
Denmark	p. 242
Sweden	p. 248
Conclusion	p. 252
Protection against Unfair Dismissal	p. 253
Denmark	p. 253
Sweden	p. 256
Conclusion	p. 258
Conclusion	p. 259
Adjustment for Reduced Working Capacity	p. 260
Denmark	p. 260
Sweden	p. 263
General Duty to Adjust Working Tasks and Conditions	p. 264
Duty to Rehabilitate Employees on Sick Leave	p. 265
Reorganisation of Work and Transfer to Another Position	p. 267
Conclusion	p. 270
Protection against Dismissals Due to Shortage of Work	p. 270
Denmark	p. 271
Sweden	p. 274
Criteria for Choosing Employees set by Law	p. 275
Special Protection of Persons with Disabilities	p. 276
Conclusion	p. 280
EU Law and Policy	p. 281
Conclusion	p. 281
Employment Promotion	p. 283
Introduction	p. 283
Contemporary Disability Human Rights Approach	p. 284
Sheltered Employment	p. 285
Supported Employment	p. 287
Conclusion	p. 291
Introduction to Danish and Swedish Labour Market Policy	p. 291
Danish and Swedish Employment Promotion Policies	p. 291
Implementation of Danish and Swedish Employment Promotion Policy	p. 293
Conclusion	p. 296
Supported Employment in the Open Labour Market	p. 296
Overview	p. 296
Reserved to Persons Otherwise Excluded from the Labour Market	p. 300
Available to Those Who Need It	p. 302
Promote Transition to Open Labour Market	p. 304
Usual Benefits of Labour Law	p. 306
Conclusion	p. 309
Sheltered Employment	p. 309
Overview	p. 309
Reserved to Persons Excluded from the Open Labour Market	p. 313
Available to Those Who Need It	p. 315
Promote Transition to Open Labour Market	p. 315
Usual Benefits of Labour Law	p. 317
Conclusion	p. 321
EU Law and Policy	p. 322
Conclusion	p. 324
Income Replacement Benefits	p. 327
Introduction	p. 327
Contemporary Disability Human Rights Approach	p. 328
Disability-Specific Provisions	p. 329
Non-Disability-Specific provisions	p. 332
Work Injury Benefit from a Human Rights' Perspective	p. 334
Conclusion	p. 335
Disability Pension	p. 335
Available to Those Who Need it and Ensures an Adequate Standard of Living	p. 337
Long-Lasting Reduced Working Capacity	p. 337
Partially Reduced Working Capacity	p. 333
Documentation of Reduced Working Capacity	p. 338
Level of Benefit	p. 340
Conclusion	p. 341
Dignified Support for Entry into Labour Market	p. 342
Suspension of Disability Pension	p. 344
Design and Administration of Disability Pension	p. 344
Conclusion	p. 345
Sickness Benefit	p. 346
Available to Those Who Need It and Ensures an Adequate Standard of Living	p. 347
Measurement of Working Capacity	p. 348
Level of Sickness Benefits	p. 350
Dignified Support for Entry into the Labour Market	p. 351
Design and Administration of Sickness Benefits	p. 354
Conclusion	p. 355
Rehabilitation	p. 356
Available to Those Who Need It and Ensures an Adequate Standard of Living	p. 356
Promotes Re-entry into Labour Market in a Dignified Manner	p. 358
Design and Administration of Rehabilitation Benefits	p. 359
Conclusion	p. 360
Work Injury Compensation	p. 360
Design and Administration of Work Injury Compensation	p. 361
Equal Right of Persons with Disabilities to Public Work Injury Compensation	p. 363
Conclusion	p. 366
EU Law and Policy	p. 366
Conclusion	p. 368
Conclusion	p. 371
Conclusion	p. 373
Main Findings	p. 373
Employers' Obligations	p. 377
Equality Law and Policy	p. 377
Employment Promotion	p. 379
Income-Replacement Benefits	p. 380
Disability Organisations and Social Partners	p. 381
Rights-Based Approach	p. 382
EU Law and Policy	p. 382
Main Recommendations	p. 383
Summary in English	p. 385
Summary in Dutch (Samenvatting)	p. 393
List of Literature	p. 401
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