Handlaus gjæte. Vern mot utstøting og diskriminering av arbeidstakere med helseproblemer eller funksjonsnedsettelse.
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‘The handless can shepherd a crowd.’ Protection against the exclusion and discrimination of employees with health problems or functional impairments This thesis deals with the labour law protection afforded by current Norwegian legislation against exclusion and discrimination on the basis of functional impairment and state of health. This protection consists of several components: firstly, the requirements concerning the individual and general working environment are important as regards the extent to which employees with health problems or functional impairment can be employed. Secondly, the protection against dismissal on grounds of sickness absence or impaired working capacity due to medical reasons. Thirdly, there is protection throughout the employment period against discrimination on grounds of disability. Fourthly, restrictions on obtaining and using medical information in employment situations protect against such information being used as the basis for exclusion and discrimination. These components have different provenances. The working environment requirements and the protection against unfair dismissal mainly arose through the development of national legislation. The anti-discrimination regulations represent a new perspective and are for the most part a consequence of corresponding regulations at EC level. The restrictions on the use of medical information are partly a result of EC legal regulations and partly a consequence of national initiatives. Despite the fact that a great many of the regulations overlap with regard to the groups protected and the practical situations to which they apply, there is little coordination between them. The thesis contains a legal history chapter (Chapter III), in which the author follows the development of legal requirements for the working environment, protection against unfair dismissal, various instruments aimed at promoting the employment of persons with functional impairments (including prohibition against discrimination) and the development of restrictions on the right to obtain and use medical information in an employment relationship. The thesis also includes a general chapter (Chapter IV) which analyses and compares groups of persons who are covered by the protection and acts that are either proscribed or prescribed pursuant to the various regulations. Among other things, the prohibitions against direct and indirect discrimination of employees with disabilities are analysed. Chapters V-VII of the thesis deal with protection from exclusion and discrimination at the appointment stage, during the employment period and on termination. In Chapter V (appointment), restrictions on the communication of medical information and the prohibition against discrimination on grounds of disability are central. In Chapter VI (the employment period), the duty to accommodate pursuant to working environment regulations is compared with the duty to accommodate pursuant to anti-discrimination regulations. Chapter VI (termination) discusses whether an employee can be dismissed as a direct or indirect consequence of difficulties at work relating to functional impairment or health problems. Despite a great amount of legislative and other regulatory activity in the area of inclusive workplaces/discrimination protection during the last ten years, the practical results are meagre. Persons with functional impairments or health problems still have problems obtaining and keeping jobs, and the percentage of persons with self-assessed disabilities in employment has fallen slightly since 2001. Chapter VIII of the thesis considers the possible causes of this lack of concrete results and the potential that lies in more active use of discrimination protection regulations.
PublisherThe University of Bergen
- Faculty of Law 577