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Reconciling risk and the employment of disabled persons in a reformed welfare state

Davies, Jackie and Davies, W. 2000. Reconciling risk and the employment of disabled persons in a reformed welfare state. Industrial Law Journal 29 (4) , pp. 347-377. 10.1093/ilj/29.4.347

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This article considers whether a welfare reform policy intended to empower disabled persons by moving them from dependency on welfare benefits to the independence of employment may instead exacerbate social exclusion. It argues that potential conflicts between employers' responsibilities under health and safety law and a duty of non-discrimination introduced by the Disability Discrimination Act 1995 must be resolved if this outcome is to be avoided. An interpretation of statutory duties to reconcile health and safety protectionism with a principle of non-discrimination for disabled persons is examined. The analysis suggests that protectionism gives rise to a potential for paternalistic decision-making on the part of employers who may refuse to accept residual risks to employees 'in their own best interests' or those of others. The standard of acceptable risk as evolved within the context of health and safety law is analysed, and found to allow paternalistic protectionism and commercial interest to override an employee's autonomous choice to accept risk, even where acceptance offers a disabled person the only opportunity to work. The article argues that this is inappropriate in the newly created context of non-discrimination and proposes development of the concept of reasonable practicability within which a standard of acceptable risk resides. An autonomy model of reasonable practicability is advocated as a mechanism for recognising the interests of all parties affected by decisions on the acceptability health and safety risk. Although the focus is primarily on persons who meet the definition of disability given in the Disability Discrimination Act 1995, many other people who fall outside it face exclusion from work on the grounds of health and safety risk. The article concludes that adoption of an autonomy model of reasonable practicability plays a necessary part in ending the social exclusion faced by all persons, disabled and non-disabled, who attempt to enter the workplace only to find their access barred by the seemingly insurmountable barriers of health and safety risks to themselves or others.

Item Type: Article
Date Type: Publication
Status: Published
Schools: Law
Subjects: K Law > K Law (General)
Publisher: Oxford University Press
ISSN: 0305-9332
Last Modified: 10 Oct 2017 15:44

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