Incapacitated person as an employee. Part 1

Abstract

The issue of establishing an employment relationship by a completely incapacitated person has been one of the most controversial in the Polish labour law literature for years. Despite the ratification in 2012 of the UN Convention on the Rights of Persons with Disabilities (hereinafter: the Convention), many authors up till now take the position that total incapacitation deprives a person of the so-called working capacity, and thus prevents such a person from concluding an employment contract, or results in the termination of a binding employment relationship. This article shows that such a position cannot be approved, as it leads to an unauthorized restriction of the constitutional rights of completely incapacitated persons and totally contradicts the prohibition of discrimination against persons with disabilities. The article in question shows the incorrectness of this position, both in relation to the existing employment relationship of the incapacitated person and to taking up new employment. The paper analyses also an impact of total and partial incapacitation on the possibility of terminating the employment contract as well as the form of its conclusion.