Seminar on the non-discrimination of the handicapped in Denmark

Den 17. juli 2006
J.nr. 3075.152   [10.01.5]  /SMP

What we have learned from the Seminar on the non-discrimination of the handicapped in Denmark, 9-10 June 2006 in Copenhagen
Danish policy for the disabled has emerged over the years through a dialogue between the politicians and the members of the disability organizations. Policy for the disabled today is based on four fundamental principles: non-discrimination and equal opportunity, sector accountability, compensation, and economic solidarity. Up till now, it has been generally thought that disability policy can be realized and rights be promoted by “Goodwill Politics” whereby it is simply expected that the “right” political decisions come about. In spite of relative improvements for people with a disability, we feel ever more strongly that “Goodwill Politics” is insufficiently capable of ensuring disability policy being realized in all areas. So it is the disability organizations’ express wish to find new and supplementary strategies for carrying out disability policy in all areas. We strongly believe that a law prohibiting the discrimination of people with a disability is the right means of realising disability policy and of ensuring its implementation in practice.

With the first labour market anti-discrimination law in 2005, Parliament passed the first legislation prohibiting discrimination in Denmark. The law applies exclusively to the labour market insofar as it implements the Directive on Non-discrimination in respect of Employment and Business, 2000/78/EF (the Employment Directive). Still it’s a step in the right direction. The law sends a clear signal that people with a disability must not be subject to unprofessional and discriminatory treatment on the labour market.

The following sums up the seminar on non-discrimination of people with a disability. The Seminar focussed on developments in the labour market for people with a disability, in particular the significance of the law prohibiting discriminatory treatment. The presentations given by those invited to make a contribution and the panel discussion started a lively debate raising a number of central questions about the combination of disability and employment. The summary focusses in the first place on the central recurring theme which was discussed at the seminar. After this a fictional case was examined dealing with the firing of an architect Peter C. Hansen, a made-up case for use at the seminar. In conclusion, on the background of the seminar on non-discrimination of people with a disability, DSI attempts to identify what central areas needed further work focussing on disability policy and the future labour market. 

The right kind of rhetoric can better the debate on integration in the labour market
The first recurring theme was the question of the rhetoric used in the debate on non-discrimination and integration of people with a disability on the labour market. Jette Frederiksen from Personnel Management stressed that it is the public sector’s personnel policy to focus on a positive rhetoric as regards integration and the recruitment of people with a disability.  Heterogeneity and open-mindedness should be promoted as important values on an equal par with other values in the public sector. The aim is to slowly break down the the negative-laden rhetoric associated with quotas, prohibition through legislation, and the opinion that people with a disability are a burden.

Representitives from the employers and trade unions, Povl-Christian DA and Karin Bancsi HK, backed up that we as a society needed to be far better at making use of the labour power available and integrating people on the edge or outside the labour market. A positive rhetoric was stressed as being part of an overall strategy for ensuring better information on the possibilities of employing employees with impaired functions including benefits and compensation subsidies.

A number of participants from the disability organizations, Morten Kjærum from the Danish Institute for Human Rights, etc., pointed out that rhetoric could not in itself change conditions on the labour market for people with a disability. It needed both parties to the labour market to open up their doors, be proactive, and make an active contribution to creating heterogeneous workplaces, thereby helping more people with a disability into employment. Practical experience shows that legislation and concrete rights prohibiting discrimination are a necessary supplement to “Goodwill Politics”.

A lack of information on benefit and compensation possibilities
The second recurring theme arose because several contributors took up the discussion in plenum about information and advice given about benefit and compensation possibilities. One of these was Fleming Ibsen, Aalborg University, who pointed out in his talk that Danish companies lack knowledge about benefit and compensation regulations. Flemming Ibsen thinks there should be access to rapid consultation especially for the small and middle-sized companies which often do not have sufficient capacity to acquaint themselves well enough with the existing benefit and compensation regulations. He thought the handicap organizations in this connection played a big role and ought to go on with this in the future. Taking up this point, Povl-Christian Jensen, DA, welcomed the idea of “jobability”.  Jobability describes the job applicant’s competence and resources and provides information on what the consequences of function impairment might be, how this can be tackled or be compensated for, and the feasibility of receiving benefit in this connection. This would give companies the opportunity to overview which benefits the individual is entitled to.

The chairman of the meeting, Mogens Gyde of Communiqué A/S, steered the debate in the house which followed about where companies can obtain the necessary advice about benefit and compensation regulations. Several Department of Employment and disability consultants mentioned that the Employment System, the new councils and job centres, is where information about compensation possibilities can be found. One contributor, Mogens Wiederholdt of the Center for Equal Rights for the disabled, brought up the fact that also the local and regional employment council together with the coming knowledge centre in Vejle (set up in connection with the implementation of the council reform) have an obligation to inform and advise on benefit and compensation. Stig Langvad, chairman of DSI, argued that disability organizations have for a long time made an active effort to inform and advise about compensation possibilities. He thought information was by no means the only solution and that it was important to intervene and influence the culture and the barriers existing in the companies. In Langvad’s opinion responsibility cannot be placed on a single actor but that it is to a large degree a common responsibility. This point of view had a broad basis of support among the seminar’s participants.

Should an administrative complaints body be established?
The third recurring theme began in general agreement among the seminar participants about challenge posed in implanting the law prohibiting discrimination in the labour market. The discussion ranged around different points of view on the way one can best ensure people with a handicap have access to a complaints procedure insofar they have suffered from discrimination in the labour market.

Einar Edelberg from the Ministry of Employment stressed in his talk that the law can be considered as a toolbox in that the formulation of the law opens up for many ways of interpretation in practice.  The first cases tried in the courts will contribute to specifying the content within the framework of the law. Povl-Christian Jensen from DA continued by putting emphasis on how case law will establish a company’s obligations and create the necessary clarity for the legislation. Morten Kjærum from the Danish Institute for Human Rights, Stig Langvad from DSI and others drew attention to the fact that time and resources devoted to a case could – if it comes to the worst – mean that many cases would not reach court. There is also a risk that implementation of the legislation will be a long drawn-out process bringing alternative ways of making a complaint into consideration.

The establishment of an administrative complaints body for dealing with discrimination cases was discussed as an alternative the courts. On the disability organizations’ side it was stressed that the court system must be supplemented by and independent complaints body so that one is not only referred to employing the courts. This will make it possible to treat a larger number of cases, shorter process, lower costs, making way for an alternative possibilities for conflict mediation and negotiation between the parties to the case. At the same time a complaints body could be put down with the necessary professional expertise. Morten Kjærum pointed out that a complaints body as well ought to have the competency to initiate any examination and have resources at their disposal to influence attitudes through campaigns.

A third possibility for ensuring access to a complaints procedure for people with a disability is to introduce a complaints procedure into the coming labour market agreements. Einar Edelberg pointed out that the law opens up for professional mediation and can therefore be included in labour market agreements. Representatives of the labour market parties expressed their reservations but did not exclude the possibility that in the future such a way forward could be considered as a supplementary instrument for implementing a law on the prohibition of discriminatory practices in the labour market.

“The court is sitting”
The seminar participants were presented with a fictive case, then split into five groups to discuss a case of dismissal justified by incompetent differential treatment. Briefly, the case concerns Peter C. Hansen, architect and chartered surveyor in ABC architect company who was fired at the end of 2005 after working for 20 years. In 1995, Peter C. Hansen suffered a partial loss of vision which required an optical aid and a personal helper on the job. There has never been any expression of criticism of Peter C. Hansen’s work, and he managed to do the same as his other architect colleagues until his vision was reduced.  After this he carried out the same assignments , worked fulltime, and managed 85% of what his colleagues managed. One thing he could not do was climb the buildings by himself, but as it’s normal for two men to be on the climbing job, it was only a problem in peak periods when Peter C. Hansen was unable to do the job on his own.

The architect company ABC which carried out valuations for the Ministry of Finance lost such a great deal of its valuation work that it had to make budget cuts to the tune of 12 fulltime jobs. The dismissals were spread out equally among all of the companies’ employees, and Peter Hansen was the only architect fired out of a group of 4 architects. Peter C. Hansen was dismissed in writing on the grounds that his impaired vision meant that as an architect he constituted less flexible labour than his architect colleagues.

Group discussion
After the showing of a film on Peter C. Hansen’s dismissal, the seminar participants were divided into broadly mixed groups where, on the basis of 5 questions, they were asked if the dismissal was justified. The discussion in groups turned on whether the ABC architect company had other possibilities than dismissing architect Peter C. Hansen and whether he dismissal could have been avoided by making a fair adjustment of conditions at work. Here the discussion was divided into two camps. A minority, mainly made p the employers’ representatives argued that the dismissal was justified since Peter C. Hansen was less flexible. While a majority, mainly composed of employee representatives and handicap organizations argued that the reason for dismissal was a manifestation of direct discrimination. The reason for this was that Peter C. Hansen’s disability was stated to be direct grounds for dismissal.

There was further discussion to what extent it would have been an excessively heavy burden for the employer not to have dismissed Peter C. Hansen. The question was whether this burden in part or in whole would be born by the public sector. Here the camps were again divided into groups in which the employer minority group concluded it would be a far too great an economic strain for the company to retain Peter C. Hansen instead of one of the other 4 architects. The employee majority on the contrary spoke in favour of offering Peter C. Hansen compensatory support and aids so that he could keep his job.

Holger Kallhauge’s “judgement”: the dismissal of Peter C. Hansen was justified on incorrect grounds
Holger Kallehauge (PTU) lead the following debate in the house first submitting the facts of the case on Peter C. Hansen’s dismissal. Then he furnished the proofs of the case. Kallehauge found it decisive that Peter C. Hansen, because of his vision impairment, could be characterized as having a handicap. Kallehauge concluded that Peter C. Hansen’s use of aids paid bout of public funds meant he had a chronic function impairment. An important question for Kallehauge stemming from this was whether there could be a question of incompetent discriminatory treatment. Since it was the case that the dismissal of Peter C. Hansen was on the grounds of vision impairment, why had he been from the start be considered otherwise than those who were not dismissed. Kallehauge emphasised that a person with a handicap is dismissable, but it is unlawful to give the grounds for dismissal by referring to an employee’s function impairment. If grounds for dismissal is that a person has a handicap we are talking about discriminatory treatment due to incompetence. Kallehauge backs up the argument for  his verdict further by pointing out ABC architect had not sought out support and compensation possibilities, e.g. in the form of a more qualified helper.

Kallehauge delivers his verdict: The reason given for dismissal is due to Peter C. Hansen’s vision impairment which is illegal and direct discrimination in contravention with the law on prohibition of discrimination in the labour market.

Kallehauge made it clear that this was a fictive case. He supposed that if a verdict should be given, a verdict would lead to the re-employment of Peter C. Hansen, according to Danish labour law. He would probably receive an indemnification of at least 6 month’s salary.