Forms of Employment of an Incompetent Employee
Abstract
The transition from a medical model of disability to a social rights-based model is becoming a global trend of normative regulation. Updating the concept of human rights initiates a change in the perception of the legal status of persons suffering from mental disorders — traditional isolation paradigm underlying legal regulation should be replaced by an approach based on their holistic rehabilitation, including their professional one. Shortcomings in the implementation of institutional norms of the incapacity lead to disproportionate restrictions on the labor rights of persons in need of legal protection, then labor-law regulation is designed to ensure such persons full socialization and protection from discrimination. This makes it possible to put forward a thesis on the independence of the labor and legal personality of persons recognized as incapable of their civil legal personality. The theory of the employment legal personality independence of a person recognized as incapable by the court in conjunction with the adaptation model of disability raises issue of the rehabilitation possibilities by various forms of employment for people suffering from severe mental disorders. The paper analyzes the features, related to the application of various forms of employment for such persons, in context of neoliberal, conservative and social-democratic models of social policy. Comparison of country data and the results of research conducted in the US, Canada and Europe show the best rehabilitation potential compared to all other measures is supported by employment technology. In addition, this technology is fully consistent with modern social concept of disability. A study of innovations related to the introduction of the accompanying employment institution for persons with disabilities showed that the potential of this technology was not fully utilized by the Russian legislator. Main methods of the study were a systematic and comprehensive analysis of regulatory legal acts of Russia, as well as foreign countries and international organizations; comparative method; expert assessment method. The findings of the study are both theoretical and practical in nature, and suggest some areas for improving Russian labor legislation on participation in labor relations of persons recognized by the court to be incompetent in the prescribed manner.
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