Uretmæssig afsked grundet handicap: Med fokus på godtgørelse

Johanne Liv Pedersen

Studenteropgave: Kandidatafhandlinger


The banning of direct – and indirect discrimination of employees on grounds of their disabilities as regards to employment and occupation in directive 2000/78 is analysed. The directive requires that sanctions must be effective, proportionate and dissuasive in art. 17. The directive is silent on the subject of how to interpret ”disability”, which have led to the use of the much narrower definition of being disabled being used from the social area of legislation in Denmark in the area of the directive. EU have used a much broader definition of disabilities which is derived from the UN. When a Danish court asked for a preliminary ruling in the case of Ring – Werge, the European Court of Justice concluded that the Danish way to define disabilities was wrong, and that disabilities should have been interpreted in line with the purposes of the directive and the EU-law (including the UN-convention) in general. Reasons for why some companies chose to dismiss disabled employees contrary to the legislation are studied. One of the reasons can be that the collective agreements makes it difficult to adjust the wage according to the value of the employees value on the market, or employers have to pay full pay to employees who’s sick. Other requirements such as a full-time working week or flexibility and working overtime makes it appealing to dismiss disabled employee, who’s is generally not as flexible as a full-functional employee. When companies make a decision to dismiss a disabled employee, they consider the cost of violating the ban. Legislator can adjust the expected cost of the firms through the choice of sanctions. In Denmark the compensation is set on basis of a certain amount of months according to the seniority of the employee and the character of the violation. The norm for compensation is 6, 9 or 12 months’ pay. The reasoning behind setting the pay according to the wage of the employee is the employee and the loss they’ve suffered from being dismissed. Besides compensation, there are other factors that can increase the cost of companies of dismissing disabled employees contrary to the legislation. This includes such things as corporate social responsibility and name-shaming. An alternative for compensation is to let the companies dismiss who they want to decisions on dismissals, the employees can receive benefits from the government or work part time while receiving some benefit from the government. It is doubtful whether the Danish way of measuring the compensation is effective and dissuasive, since it is not set higher than the assumed level of damage and as a result of the economic analysis, an alternative to the Danish way of measuring compensation, consisting of a combination the way it is measured now and punitive damage according to the company’s turnover paid to the government, so the sanctions will be effective and dissuasive.

UddannelserCand.merc.jur Erhvervsøkonomi og Jura, (Kandidatuddannelse) Afsluttende afhandling
Antal sider76