International rights rarely make it to Danish workers

Several EU rules meant to protect the rights of Danish workers have not been properly implemented in the Danish labour market. In various cases, Danes suffering from e.g. physical or mental disabilities have been caught in the middle. Researcher from Aarhus University has received DKK 1.7 million to explore the extent of the problem.

2015.10.19 | Andreas G. Jensby

Several international and EU rules meant to protect the rights of individual employees are not easily applicable in the Danish labour market. The reason is that, out of respect for the Danish model, Denmark typically leaves it up to the employers and employees to implement the new rules or implement them by way of minimum legislation. In this process, the original intention of the rule is often lost. 

In cases concerning people with disabilities, the consequence is that both employers and employees are unaware of how to handle the specific cases.  The obesity case from Billund where a childminder was fired due to being obese is the latest example of a disability case which could not be solved in Denmark, but ended up in the European Court of Justice.

This is the result of research conducted by postdoc in labour law, Natalie Videbæk Munkholm from Aarhus University, who has just received DKK 1.7 million from the Danish Council for Independent Research to study the issue further.

Same rule - different rights
She became aware of the problem when she compared the labour market rights of people with disabilities in Denmark and the UK. Both countries are bound by the same EU rule, but to her considerable surprise the rule had not really caught on in Denmark due to an unclear understanding of the notion of disability. The result was that people suffering from e.g. multiple sclerosis or epilepsy were not protected by the Anti-discrimination Act in cases of dismissals although they should have been - and would have been in the UK.

“The latest examples were last year’s obesity case and the 2013 disability case, but previous cases of racial discrimination, rules for part-time employment and union membership agreements which were in conflict with the notion of trade union freedom have also been criticised by the European Court of Human Rights,” Natalie Videbæk Munkholm explains.
 

The Danish Institute for Human Rights has also pointed out the labour market as an area in which the rights of individuals are struggling to gain foothold as the parties in the tripartite negotiations fail to take ownership of the implementation.

The means must respect the end
Paradoxically, the root of the problem is found in the strong Danish model. With the good intention of protecting the model, the politicians leave it up to the parties in the tripartite negotiations to implement the international rules. And when they do have to legislate, they stick to the minimum.

But in this process, it seems that many of the good intentions and values behind the new rule - that is, the actual purpose of the rule - are lost. The problem ends up belonging to the individual employers and employees, who are thereby in a less fortunate legal position than their foreign colleagues.  Individual rights are not easily upheld in collective agreements.

“To the best of our current knowledge, worker’s rights are best protected through collective agreements and minimum legislation. But in this way, we will become a country which fails to develop our workplace conditions along with the international tendencies. Denmark wants to be a pioneering country. But if we do not thoroughly investigate the actual purpose of the new rules but simply legislate at minimum level, we are in no way at the forefront,” Natalie Videbæk Munkholm explains.

Supported by the DKK 1.7 million grant, the next two years will see Natalie Videbæk Munkholm working on a set of criteria for evaluating when is it best to let the parties in tripartite negotiations implement a new rule and when it is best to legislate.

Further information
Natalie Videbæk Munkholm
Department of Law, Aarhus University
Mail: nmunkholm@law.au.dk
Tel.: +45 8716 5978

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