När den personliga assistenten tystnar - Den personliga assistentens och assistansanvändarens folkrättsliga rättigheter i uppsägningssituationer

Sammanfattning: In this thesis I examine legal considerations concerning the balance between employment protection for personal assistants and self-determination for the service user, i.e. the person with a disability. Personal assistance as a profession entails a close relationship between the service user and the personal assistant. In many cases, a healthy relationship is a condition for the wellbeing of the personal assistant as well as the service user. If the service user is unsatisfied with the personal assistant it can raise the question of whether or not the employment contract can be terminated. A ground premise is that a termination is legal only if the employer can provide a valid ground for dismissal. In this assessment, the personal assistant’s interest of employment security must be balanced against the interest the employer (e.g. the service user) has in dismissing the assistant. The thesis focuses on this assessment and the rights in public international law that may be affected. The treaties I examine are CRPD, ICCPR, ECHR, the revised European Social Charter and ILO Convention C158. Regarding the rights of the service user, my conclusion is that article 15 of the revised European social charter provides an effective right for persons with disabilities to enjoy independence and social integration in the community. It is not sufficient that a state provides support to the service user – the support must also be inclusive and respect the preference and will of the service user. By examining state reports from the European Social Committee, I conclude, however, that the Committee focuses more on whether or not the nature of the support is inclusive – rather than what opportunities the support actually gives the individual. However, the right to independent living in article 19 of CRPD focuses more on the influence of individuals. Thereto, article 12 of CRPD provides that persons with disabilities enjoy legal capacity on an equal basis with others. By reading article 19 of CRPD together with article 12 of CRPD I conclude that CRPD provides that persons with disabilities have an effective right to have control over every aspect of their lives. The committee of persons with disabilities explicitly highlights personal assistance as an example where personal autonomy and self-determination are prerequisites for independent living. On the other hand, article 24 of the European Social Charter and article 4 of the ILO Convention C158 protect workers against unfair dismissals. By examining state reports I find, however, that the protection against unfair dismissals is weak and leaves the balancing between different interests to be determined by national legislation. The main protection workers have in international law is instead through the prohibition against discrimination in article 26 of ICCPR. My conclusion is that article 26 of ICCPR provides that national law cannot treat persons different if they are equal in the circumstances of judicial relevance. Therefore, even if article 26 of ICCPR is the most important right for personal assistants, the protection is still dependent on the national protection of workers in similar situations. I conclude that the rights examined allow national legislations that give workers a weak protection against unfair dismissals, as long as the domestic rules treat workers that are equal in the circumstances of judicial relevance in the same way. This does not mean that personal assistants have a poor employment protection in practice, but international law delegates much of the detail regulation to the states. In comparison, the rights concerning service users are of more strict character and give individual states a narrow margin of appreciation regarding how to interpret the rights. The questions I discuss in this thesis are complex and there is no easy legal solution. I therefore encourage others to continue the discussion about the issues highlighted in the thesis, because these are questions that require a variety of perspectives and approaches.