In this chapter we will give a brief overview of the European and international legal framework concerning the employment of persons with disabilities.
The main European and international legislation (whether binding or not) dealing with the employment of persons with disabilities includes:
- The UN Convention on the Rights of Persons with Disabilities and its Optional Protocol
- The Council of Europe Action Plan to promote the rights of persons with disabilities in society
- EU legislation :
o the EC Disability Action Plan
o the European Employment Strategy
o the Employment Equality Directive (directive 2000/78 of November 27, 2000)
o the New State Aid regulation (EC regulation N°800/2008)
1. UN Convention on the Rights of Persons with Disabilities
The Convention was adopted in December 2006 and entered into force in May 2008 after the 20th signature was obtained. It complements other international texts (not legally binding) related to persons with disabilities: the “Standard Rules on Equalization of Opportunities for Persons with Disabilities” (1994) and the “World Programme of Action on Disabled Persons” (1982).
The purpose of this Convention is “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities and to promote respect for their inherent dignity” (article 1). What is unique about it is that it is legally binding. It is fair to mention that Article 3 of the Convention refers to many principles directly related to employment, including “non-discrimination”, “equality of opportunity” and “accessibility”. Also, Article 4.1.c. (general obligations) stipulates that the States parties must “take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes” and “take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise”. It thus means that the rights of persons with disabilities have to be mainstreamed into the employment policies of a country and that discrimination is prohibited with regards to employment. Moreover, Article 5 proclaims the right to equality and non-discrimination, and declares that “States Parties shall prohibit all discrimination on the basis of disability.” In order to achieve these goals, they “shall take all appropriate steps to ensure that reasonable accommodation is provided.” “Reasonable accommodation” means carrying out, when necessary, appropriate modifications and adjustments which do not impose a disproportionate or undue burden. It also applies to workplaces.
Thus, article 9, concerning accessibility, stresses the fact that appropriate measures should be taken to ensure access for persons with disabilities to “buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces” as well as “information, communications and other services, including electronic services”.
And last but not least, article 27, dealing with work and employment, is the main provision of this convention as far as the employment of persons with disabilities is concerned. According to this article, “States Parties recognize the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities.” This article prohibits discrimination on the basis of disability (concerning the conditions of recruitment, hiring and employment, the prolongation of employment, career advancement and working conditions). Persons with disabilities must have effective access to general technical and vocational guidance programmes, placement services, vocational and continual training, vocational and professional rehabilitation, job retention and return-to-work programmes. The States Parties have to promote opportunities for self-employment and entrepreneurship. They must also employ persons with disabilities in the public sector and should promote the employment of persons with disabilities in the private sector.
2. Council of Europe Disability Action Plan
This Action Plan aims at providing a comprehensive European framework on disability for the period 2006-2015 that is both flexible and adaptable, in order to meet country-specific conditions. It is intended to serve as a roadmap for policy makers. It thus deals with the different aspects of the daily life of persons with disabilities. It presents key action lines in all those fields and action line N°5 deals especially with employment, vocational guidance and training of persons with disabilities.
This action line highlights the fact that employment is a lever for social inclusion and for economic independence. In order to erase all the barriers to participation in the workforce and to achieve a higher activity rate for persons with disabilities, there should be a large array of diversified policies
and actions. Thus, vocational guidance plays an important role in identifying people’s capacities and in enabling them to make real career choices. Social enterprises and sheltered workshops may also contribute to the employment of persons with disabilities.
In order to increase the employment rate of persons with disabilities, anti-discrimination measures as well as positive actions are needed. This action line enumerates a large number of actions which have to be undertaken by the Member States:
- Mainstream issues relating to ‘disability’ in general employment policies
- Focus on abilities, rather than on disabilities, so as to identify their options regarding potential occupation (with the help of vocational training)
- Ensure access to vocational guidance, training and employment related services
- Ensure that the workplace or working conditions are accommodated as needed (‘reasonable adjustments’) and that self-employment schemes are accessible to persons with disabilities
- Encourage people to work when they can by removing disincentives to work
- Support persons with disability with the move from sheltered to open employment
3. EU Legislation
European legislation addresses disability in a broad range of areas, from anti-discrimination to transport or telecommunications. It also addresses the issue of disability and employment.
3.1. The EU Disability Action Plan
The objective of the Commission’s disability strategy since 2003 has been to make equal opportunities for persons with disabilities a reality. The EU Disability Action Plan (DAP) 2003-2010 provides the practical means to make this happen and is developed in two-year phases with policy priorities that respond to the equality gaps that persons with disabilities face.
The key objectives are the full implementation of the Employment Equality Directive and the improvement of accessibility for all. The purpose of the EU DAP is also to mainstream disability issues within all relevant EU policies. These matters should not be treated separately but be integrated into legislation and society as a whole.
The first 2004-2005 phase of the DAP focused on access to employment, on maintaining employment through lifelong learning, on the use of the potential new technologies, and on the accessibility of the surrounding environment, including the work environment.
The 2006-2007 DAP focused mainly on the active inclusion of persons with disabilities in society by promoting access to quality support and care services, fostering the accessibility of goods and services, and encouraging activity. Indeed, raising the employment and activity rates of persons with disabilities remains a priority, according to the European Employment Strategy (EES).
The new 2008-2009 DAP focuses on accessibility. The aim is to stimulate the inclusive participation of persons with disabilities by fostering accessibility in the labour market through flexicurity, supported employment (thanks to the simplified Commission State-aid rules) and working with Public Employment Services. The other objectives are those of boosting the accessibility of goods, services and infrastructures, consolidating the Commission's analytical capacity and facilitating the implementation of the UN Convention.
3.2. EU Employment Strategy
The European Employment Strategy (EES) is a key component of the Lisbon strategy, which aims at creating the “the most competitive and dynamic knowledge-based economy in the world, capable of sustainable economic growth with more and better jobs and greater social cohesion”. It is based on 4 pillars: employability, entrepreneurship, adaptability and equality of opportunities.
The EES was first launched in 1997 by the Council of Luxembourg, but the re-launch of the Lisbon Strategy in 2005 (in an effort to focus more closely on developing strong, sustainable growth and more and better jobs) led to the EES being fundamentally reviewed.
Every three years, Integrated Guidelines for Growth and Jobs (presented jointly with the guidelines for the EU's macroeconomic and microeconomic policies) have to be implemented in the Member States through National Reform Programmes. An annual report on growth and employment, which analyses the 27 National Reform Programmes, is then issued by the Commission.
In these guidelines, particular attention must be paid to significantly reducing employment gaps for people at a disadvantage, including disabled people. Combating discrimination, promoting access to employment and inclusion in the labour market for persons with disabilities are particularly essential.
3.3. Employment Equality Directive (directive 2000/78 of November 27 2000)
The Employment Equality Directive prohibits discrimination with regard to employment and occupation on the grounds of religion or belief, age, sexual orientation or disability. This directive asserts the principle of equal treatment.
The directive applies to both the public and private sectors in relation to:
· conditions for access to employment, self-employment or occupation,
· access to vocational guidance and training,
· employment and working conditions.
All employers must provide ‘reasonable accommodation’ for persons with disabilities. This means that they have a right to have adaptations made to their workplace in order to gain easier access to, and participate in, employment, unless it constitutes a disproportionate burden for the employer.
It also allows for limited exceptions to the principle of equal treatment: it does not deprive the Member States of their right to take positive actions aimed at facilitating or promoting the integration of disadvantaged persons into the working environment.
Moreover the Members States must, in compliance with this directive, promote dialogue between social partners and with appropriate NGOs, with a view to fostering and promoting equal treatment.
3.4. New State Aid Regulation (EC regulation N°800/2008)
This regulation provides an exception to the EC competition rules: it declares certain categories of aid compatible with the common market (general block exemption regulation) because it does not distort competition. Member States can thus grant such an aid without prior notification to the Commission.
Whereas previously exempted measures (covering regional aid, investment and R&D aid for SMEs, training and employment aid) were scattered in 4 different regulations, they are now gathered in one text and include new types of aids.
This enables Member States to create financial incentives for employers in order to recruit and retain persons with disabilities. Member States now have more possibilities for supporting employers employing persons with disabilities: higher levels of aid are available and the scope of the regulation is broader. Recruitment and employment of disadvantaged workers in the form of wage subsidies and compensation for the additional costs of employing workers with disabilities are examples of situations in which authorized aid may be granted.
Concerning the employment of workers with disabilities, the regulation now raises the aid intensity to 75 % of the wage costs of the period in which the worker is employed. Moreover, the aid intensity to be provided for the general training of disabled workers rose to 70% and the aid intensity for compensating additional costs of employing workers with disabilities has risen to 100%. This includes all costs which are additional to those that the employer would have incurred if employing workers who are not disabled (for example costs for adapting premises, for employing staff for the purpose of assisting the worker with a disability, or for adapting or acquiring equipment). With regard to the notification to the Commission, the threshold has doubled to €2 million, which allows for higher total amounts of aid to be granted.
4. Conclusion
Equal treatment, inclusion in the labour market and mainstreaming of disability issues in relevant policies are the key principles of the texts mentioned above. In order to achieve these objectives, emphasis should be placed on access to employment and employment-related services (such as vocational guidance and training), so that persons with disabilities are provided with real career choices. The need for reasonable accommodation (concerning the workplace and the ICT) is also stressed in these texts, as well as the need for Member States to actively promote the employment of persons with disabilities. Sheltered employment, self-employment and other forms of occupation can contribute towards better integrating persons with disabilities in society.
Following this general but brief overview of the European and international legal framework for the employment of persons with disabilities, the next chapter will deal with the situation in greater depth by examining the needs and challenges that the partnership countries have to face.
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