Malta European Union 2017

European Disability Forum

Conference: Inclusive Workplaces – Employment of Persons with Disabilities in the Labour Market

February 18, 2017, Malta Quawra Palace Hotel

Opening Speech: The Right to Inclusive Employment and the CRPD

Klaus Lachwitz,

President Inclusion International

I.  Human Rights Approach:

The Right to Work and Employment is a fundamental human right.

It is essential for realizing other human rights and forms an inherent part of human dignity.

Work and Employment are key elements of life such as education, housing, leisure time activities and retirement.

They are elementary factors in ensuring the full and effective participation and inclusion of persons with disabilities in society as described in the General Principles of the CRPD (Art. 3 c.).

II.  The Legal Framework of Art. 27 CRPD:

Art. 27 CRPD establishes the legal framework for States Parties obligations in relation to work and employment of persons with disabilities.

The Right to Work and Employment as described in Art. 27 para. 1. CRPD defines some essential criteria which must be met by States Parties, if they claim to implement the Right to Work and Employment:

-  It is the recognition of the right of persons with disabilities to work on an equal basis with others, i.e. not to be restricted to performances of work which in comparison with the work of non – disabled persons are limited to certain kinds of work only or which are segregating workers with disabilities.

-  It includes the right to gain a living, i.e. to receive a remuneration for the work performed.

-  It must be a work freely chosen or accepted, i.e. the applicant for work must be enabled to decide between different options of work and employment.

-  And it must be a work offered in a labour market and work environment that is open, inclusive and accessible to persons with disabilities.

Contents of Art. 27 CRPD:

Based on these criteria Art. 27 CRPD gives guidance on the implementation of the Right to Work and Employment. Among other things it covers general technical and vocational guidance programmes, placement services and vocational and continuing training, labour and trade union rights, self – employment, entrepreneurship, cooperatives and one`s own business.

The Right to Work as a Social Human Right:

The Right to Work and Employment is a social human right. With regard to social, cultural and economic human rights Art. 4 para. 2 CRPD prescribes that the full realisation of these rights by a States Party usually must be achieved progressively only and to the maximum of its available resources. But there are exceptions from this general rule: According to the last half sentence of Art. 4 para. 2 CRPD there are obligations contained in the CRPD that are immediately applicable. This is in particular the prohibition of discrimination on the basis of disability. This prohibition is an obligation with immediate effect!

The Right to Work and the Protection against Discrimination:

And this immediate effect includes the Right to Work and Employment as Art. 27 para 1 a. CRPD expressly “prohibits discrimination on the basis of disability with regard to all matters concerning all forms of employment.”

The term discrimination is defined in Art. 2 CRPD in a very broad and comprehensive way: Discrimination on the basis of disability means any distinction, exclusion and restriction which has…the effect of impairing or nullifying….the exercise of all human rights in the political,…social or any other field. With regard to the Right to Work and Employment this means: Employers who offer workplaces which are not accessible for persons with disabilities and therefore exclude them from exercising their Right to Work discriminate against these persons with disabilities. States Parties are obliged to prohibit such discrimination.

Accessibility of Workplaces:

The easiest ways to avoid, reduce or abolish discrimination in the field of work and employment are appropriate measures taken by the States Parties to eliminate obstacles and barriers to accessibility. Such measures are described in Art. 9 CRPD (Accessibility) and include buildings, roads, transportation,..schools, housing, medical facilities and workplaces (Art. 9 para. 1 a.).

The Right to Work and Reasonable Accommodation:

Other ways to eliminate discrimination in the field of work and employment are appropriate steps taken and initiated by the States Parties to help to modify and adjust workplaces in individual cases to ensure that persons with disabilities can enjoy or exercise their right to work and employment in the open labour market on an equal basis with others. The legal description used in the CRPD for such individual measures of support to enable a person with disabilities to exercise the right to work in an open and inclusive labour market is the term “reasonable accommodation”.

According to Art. 5 para. 3. CRPD States Parties are obliged to “take all appropriate steps to ensure that reasonable accommodation is provided.” This obligation is again specified in Art. 27 para. 1 i. CRPD which reads that States Parties “ensure that reasonable accommodation is provided to persons with disabilities in the workplace.” The term “reasonable accommodation” is defined in Art.2 CRPD: It “means necessary and appropriate modification and adjustment not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and freedoms.” It should be added that according to Art. 2 para. 3 sentence 2 CRPD the denial of reasonable accommodation is a form of discrimination.

Result: The legal framework of Art. 27 is well structured and contains very distinct criteria and messages for the implementation of the Right to Work and Employment.

III.  Implementation of Art. 27 CRPD by the UN - States Parties

But what is the reality in EU – countries?

According to a 2015 - Study for the Committee on Employment and Social Affairs (EMPL) of the European Parliament: “Reasonable Accommodation and Sheltered Workshops for People with Disabilities: Costs and returns of investments”, the rate of unemployment of people with disabilities in the European Union is almost twice that of the general population: It is 18. 3 % in comparison to 9.9 %! These figures correspond with data published for Germany in the Inclusion - Barometer of Aktion Mensch: In 2016 13, 4 % of persons with disabilities in Germany were unemployed whereas the unemployment rate of the German population amounts to 6.5 % only. The gap between the unemployment rates of persons with and without disabilities widens even further. This is in particular true for women with disabilities. Job seekers with disabilities need 367 days in the average to get employed. Non – disabled persons require 266 days.

Art. 27 CRPD and Sheltered Workshops:

And what is more: Many persons with disabilities in the European Union work in sheltered workshops and comparable settings. These work options usually apply for persons with intellectual, psychosocial and multiple disabilities. So far there is no common definition of sheltered workshops in the EU Member States. The reason is that the national social laws describing and covering sheltered workshops and comparable settings in the EU – Member States are different. Therefore it is not possible to collect comparable data on the nature and scale of sheltered workshops for the European Union.

Germany, however, seems to be the biggest provider of sheltered workshops in Europe. The newest figures available stem from 2016 and have been published by the German Federation of Workshops for persons with disabilities (BAG WfbM): There are 680 workshops for persons with disabilities all over Germany with 2759 manufacturing sites and sites which offer different kinds of services. The number of persons with disabilities in these workshops is still increasing: In 2016 30062 persons with disabilities took part in vocational training in sheltered workshops and 261562 persons with disabilities were working permanently in the work areas of these workshops. They have social insurance, but they do not enjoy employee status and the average remuneration of 180. - EURO per month is not only far below the average earnings, but also far below the subsistence level.

Nevertheless in particular many older parents of sons and daughters with intellectual disabilities defend the existence of workshops as in their view many of them provide workplaces and staff members of high quality and develop creative methods to manufacture products and to offer services which are useful and in line with the requests of many persons with disabilities in the workshops. Younger parents, however, more and more ask for inclusive work options at the open labour market. There are discussions going on between families, self – advocates, DPOs, experts and politicians which differ between segregated work in isolated places and sheltered, but inclusive work which tries both to protect the needs of workers with intellectual, psychosocial and multiple disabilities and to include them in workplaces close to the open labour market or even being part of the open labour market. It is, therefore, not possible to measure all 680 workshops in Germany by the same standards. Many of them do not correspond with Art. 27 CRPD as they are situated outside the community in the “open countryside” and as they even accommodate persons with disabilities, who permanently work in the work areas of the workshop, in facilities and group homes which are part of the premises of the workshops. But there is a growing number of other workshops which cooperate successfully with supermarkets, gardening centres, restaurants and hotels to find work for their clients outside the workshops and to build up strong and regular connections to community services and to the general population living in the community. In most cases, however, the attempts to include workers of the workshops in the open labour market are legally taking place “under the roof of the workshops”, i.e. the workers with disabilities are not employed by the owners of the supermarkets, gardening centres etc. but remain working members of the workshops. The main reason for this is that the social protection of persons with disabilities working in workshops is fairly high developed and that the German social law guarantees a pension after 20 years of work in a workshop. If persons with disabilities change from the working area of a workshop to an employment contract at the open labour market they risk the reduction of social security benefits and pension insurance which are currently tied to workshops for persons with disabilities.

Traditional and Transitional Sheltered Workshops in Europe:

According to the above mentioned 2015 - EU –Study for the Committee on Employment and Social Affairs (EMPL) there are two types of sheltered workshops in EU – countries: Traditional sheltered workshops which primarily employ people with severe disabilities who cannot be integrated in the open labour market. And transitional sheltered workshops which aim to transfer persons with disabilities from sheltered into non – sheltered employment. But at the time being this aim seems to be a fiction only as just 3 % of people in transitional sheltered workshops move on to the open labour market!

The question, therefore, remains whether work and employment in sheltered workshops corresponds with Art. 27 CRPD.

Segregated Work:

There are very clear legal statements now that sheltered work which is not freely chosen but the only option to work without accessibility to the open labour market violates the right to work and employment as described in Art. 27 para. 1 a. CRPD.

This has, for instance, been described by the Office of the UN - High Commissioner for Human Rights in the “Thematic Study on the Work and Employment of Persons with Disabilities” (General Assembly December 17, 2012 – A/HRC/22/25):

“It is imperative that States Parties move away from sheltered employment schemes and promote equal access for persons with disabilities in the open labour market!”

The UN Committee on the Rights of Persons with Disabilities shares that view. There is no General Comment (GC) so far adopted and published by the Committee on the Right to Work and Employment (Art. 27 CRPD). The Committee, however, carefully examined several comprehensive reports by EU - States Parties on measures taken to give effect to their obligations under the CRPD and summarized its concerns with regard to sheltered employment in its Concluding observations as follows:

Overview on some EU – Countries:

Germany:

“The Committee is concerned about segregation in the labour market and the fact that segregated sheltered workshops fail to prepare workers for or promote transition to the open labour market.” The Committee recommends to phase out “sheltered workshops through immediate enforceable exit strategies and timelines and incentives for public and private employment in the mainstream labour market.”

Austria:

“The Committee notes with concern that approximately 19000 Austrians work in sheltered workshops outside the open labour market and receive little pay.” And the Committee notes with concern that there is “a significant gender gap in the employment and income of women with disabilities, when compared with men with disabilities.”

“The Committee recommends that the State Party enhances programs to employ persons with disabilities in the open labour market.” The Committee further recommends “that measures be put in place to narrow the employment and payment gender gap.”