Forms of Employment of an Incompetent Employee

Abstract

The transition from a medical model of disability to a social rights-based model isbecoming a global trend of normative regulation. Updating the concept of human rightsinitiates a change in the perception of the legal status of persons suffering from mentaldisorders — traditional isolation paradigm underlying legal regulation should be replacedby an approach based on their holistic rehabilitation, including their professional one.Shortcomings in the implementation of institutional norms of the incapacity lead todisproportionate 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 theindependence of the labor and legal personality of persons recognized as incapable oftheir civil legal personality. The theory of the employment legal personality independenceof a person recognized as incapable by the court in conjunction with the adaptationmodel of disability raises issue of the rehabilitation possibilities by various forms ofemployment for people suffering from severe mental disorders. The paper analyzes thefeatures, 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, Canadaand Europe show the best rehabilitation potential compared to all other measures issupported by employment technology. In addition, this technology is fully consistent withmodern social concept of disability. A study of innovations related to the introduction ofthe accompanying employment institution for persons with disabilities showed that thepotential of this technology was not fully utilized by the Russian legislator. Main methodsof the study were a systematic and comprehensive analysis of regulatory legal acts ofRussia, as well as foreign countries and international organizations; comparative method;expert assessment method. The findings of the study are both theoretical and practical innature, and suggest some areas for improving Russian labor legislation on participationin labor relations of persons recognized by the court to be incompetent in the prescribed manner.
For citation: Zaytseva L.V., Kursova O.A. (2019) Forms of Employment of an Incompetent Employee. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 26–51 (in Russian) DOI: 10.17-323/2072-8166.2019.3.26.51