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  1. Committee on the Rights of Persons with Disabilities

Convention on the Rights of Persons with Disabilities (“CRPD”)

Article 27 of the CRPD, which concerns work and employment, affirms the right of persons with disabilities to work, on an equal basis with others.

Article 27 provides:

 

Article 27 – Work and employment

   1. 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. States Parties shall safeguard and promote the realization of the right to work, including for those who acquire a disability during the course of employment, by taking appropriate steps, including through legislation, to, inter alia:

a) Prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring and employment, continuance of employment, career advancement and safe and healthy working conditions;

b) Protect the rights of persons with disabilities, on an equal basis with others, to just and favourable conditions of work, including equal opportunities and equal remuneration for work of equal value, safe and healthy working conditions, including protection from harassment, and the redress of grievances;

c) Ensure that persons with disabilities are able to exercise their labour and trade union rights on an equal basis with others;

d) Enable persons with disabilities to have effective access to general technical and vocational guidance programmes, placement services and vocational and continuing training;

e) Promote employment opportunities and career advancement for persons with disabilities in the labour market, as well as assistance in finding, obtaining, maintaining and returning to employment;

f) Promote opportunities for self-employment, entrepreneurship, the development of cooperatives and starting one’s own business;

g) Employ persons with disabilities in the public sector;

h) Promote the employment of persons with disabilities in the private sector through appropriate policies and measures, which may include affirmative action programmes, incentives and other measures;

i) Ensure that reasonable accommodation is provided to persons with disabilities in the workplace;

j) Promote the acquisition by persons with disabilities of work experience in the open labour market;

k) Promote vocational and professional rehabilitation, job retention and return-to-work programmes for persons with disabilities.

2. States Parties shall ensure that persons with disabilities are not held in slavery or in servitude, and are protected, on an equal basis with others, from forced or compulsory labour.

 

General Comments

General Comment No. 2 specifically addresses the issue of ‘accessibility’ in the CRPD. Accessibility is a precondition for persons with disabilities to live independently and participate fully and equally in society. In dealing with the issue of accessibility under Article 27, the General Comment emphasizes that a refusal to adapt the workplace constitutes a prohibited act of discrimination. The General Comment notes that in addition to the physical accessibility of the workplace, persons with disabilities need accessible transport and support services to travel to and from their workplaces. Further, all information pertaining to work, advertisements of job offers, selection processes and communication at the workplace that is part of the work process must be accessible through sign language, Braille, accessible electronic formats, alternative script, and augmentative and alternative modes, means and formats of communication.

The General Comment No. 2 is available here.

Concluding Observations

The Committee has set out a range of recommendations in its Concluding Observations for various State Parties to ensure the full implementation of Article 27. The excerpts of all the Concluding Observations issued by the Committee relating to Article 27 are available here.

Views on Individual Communications

 

The following are summaries of Individual Communications relating to supported employment:

 

S.C. v Brazil (Communication No. 10/2013)


Complainant(s): S.C.
State Party: Brazil
Treaty-based Body: Committee on the Rights of Persons with Disabilities


Relevant Articles: Articles 3, 4, 5 and 27 of the Convention of the Rights of Persons with Disabilities

Case Synopsis: The Complainant took medical leave for over three months as a result of injuries sustained in motorcycle accidents. Under the employer’s policy, the Complainant is required to return to work within three months in order to retain her position as a bank teller. She was demoted when she returned to work after a six-month leave period. The Complainant asserts that the State party violated her rights under Article 27, paragraph 1(a) of the CRPD, insofar as the discrimination she suffered was linked to her employment and working conditions. The Complainant also invokes Article 27, paragraph 1(b) of the CRPD, asserting that she has not enjoyed the same working conditions and opportunities as her colleagues due to her impairment, even though her skills are equivalent to those of her colleagues. Before considering any claim, the Committee must first decide whether or not it is admissible. The Committee takes note that the Complainant’s appeal before the Superior Labour Court was denied. However, the Committee finds that the Complainant has not substantiated that there were no other opportunities for legal representation open to her, as such the complainant has failed to demonstrate that she has exhausted domestic remedies. Therefore, the Committee finds the Complainant’s claim inadmissible.

Read the full case here.

 

Marie-Louise Jungelin v Sweden (Communication No. 5/2011)


Complainant(s): Marie-Louise Jungelin
State Party: Sweden
Treaty-based Body: Committee on the Rights of Persons with Disabilities


Relevant Articles: Articles 5 and 27 of the Convention of the Rights of Persons with Disabilities

Case Synopsis: The Complainant has severe sight impairment since birth. She applied to the Social Insurance Agency to work as an assessor and was called to an interview. Subsequently, the Complainant was informed that although she fulfilled the qualification requirements, she had not been considered for the post because the Social Insurance Agency’s internal computer system cannot be adapted for her sight impairment. The Complainant filed an application at the Labour Court, through the Swedish Disability Ombudsman and submits that she was discriminated against insofar as the Social Insurance Agency failed to adequately assess the possibility of taking support and adaptation measures to assist the complainant. The Labour Court dismissed her claim after finding that the support and adaptation measures that the Social Insurance Agency would have had to adopt were not reasonable and would constitute an undue burden. On the facts, the Committee considers that the Labour Court has thoroughly and objectively assessed all the elements of the claim before reaching its conclusion. Consequently, the Committee is of the view that the facts do not constitute a violation of the CRPD.

Read the full case here.

 

Liliane Gröninger v Germany (Communication No. 2/2010)


Complainant(s): Liliane Gröninger, her son Thomas Gröninger and her husband, Erhard Gröninger
State Party: Germany
Treaty-based Body: Committee on the Rights of Persons with Disabilities
Relevant Articles: Articles 3, 4, 5, 8 and 27 of the Convention of the Rights of Persons with Disabilities

Case Synopsis: The Complainant’s son is a person with disability. The Complainant submits that the social legislation related to granting integration subsidy is discriminatory since it is only applicable to persons with disabilities whose full working capacity may be restored within three years and constitutes a violation of Article 27 on the ground that it fails to facilitate the inclusion of a person with disabilities in the labour market. The Committee notes that Article 27 implies an obligation on the part of States Parties to create an enabling and conducive environment for employment, including in the private sector. In the instant case, the Committee is of the view that the existing model for the provision of integration subsidies do not effectively promote the employment of persons with disabilities, in particular, potential employers face difficulties when trying to gain access to the integration subsidy that they are entitled to for the employment of a person with disabilities, which affects the effectiveness of the scheme. Consequently, the Committee finds that the integration subsidies scheme is not in accordance with Article 27, paragraph 1(h) of the CRPD.

 

Read the full case here.

Kenneth McAlpine v UK (Communication No. 6/2011)


Complainant(s): Kenneth McAlpine
State Party: The United Kingdom
Treaty-based Body: Committee on the Rights of Persons with Disabilities
Relevant Articles: Articles 4, 5, 8, 12, 22 and 27 of the Convention of the Rights of Persons with Disabilities

Case Synopsis: The Complainant worked in a firm as a consultant where he was in charge of one client account, which involved incident management, attending monthly meetings, and preparation of a monthly report. As incidents of the first client account decreased, the Complainant was tasked to deal with a second client account. In a meeting with the Complainant, the line manager learned that the Complainant was diabetic and not happy with the increased workload. Subsequently, the firm went through reorganization of structure and the Complainant was informed that he had been provisionally selected for redundancy because his role was no longer required due to the changing business model. Shortly after, the Complainant was dismissed from his post. The Complainant alleged he was made redundant because of his disability and his employer failed to make reasonable adjustments that would enable him to continue to stay in the firm. The Employment Tribunal rejected his claim and he appealed to the Employment Appeals Tribunal which also dismissed his application. The Committee finds that the alleged violation took place before entry into force of the CRPD and the Optional Protocol, (which could not be applied retroactively). Consequently, the Communication is inadmissible.

 

Read the full case here.

 

   2. Committee on Economic, Social and Cultural Rights 

The International Covenant on Economic, Social and Cultural Rights (“ICESCR”) was promulgated in 1976. As at 17 January 2017, 165 out of 170 signatory states have ratified the ICESCR. The Optional Protocol, promulgated in 2009, is ratified by 22 states. China has signed and ratified the ICESCR but not the Optional Protocol.

Whilst the ICESCR does not refer explicitly to persons with disabilities, it applies to such individuals by virtue of the fact that it is applicable to all human beings. It is well recognized that disability is closely linked to economic and social factors. In poor countries (or even countries with a relatively high standard of living), persons with disabilities are often denied access to basic needs such as food, water, shelter, and health protection.

The general obligations of States Parties under the ICESCR are not couched in absolute terms. Pursuant to Article 2(1), States Parties are obligated to achieve “progressively the full realization of rights” of which are dependent on “available resources”. At the same time, Article 2(2) provides that the measures taken to give rise to such rights must be taken “without discrimination of any kind”.

The specific rights guaranteed under the ICESCR are divided into four sections. The first section deals with the overarching right to non-discrimination (Articles 2 and 3). The second section deals with the rights that facilitate participation, including the right to education (Articles 13-14) and the right to health (article 12). The third section deals with the rights to participate in the workplace, including the right to work (Article 6), right to just and favourable conditions of work (Article 7), and the right to form and join trade unions (Article 8). The fourth section deals with other rights such as the right to social security (Article 9), right to protection of family, mothers and children (Article 10), right to an adequate standard of living (Article 11), and right to take part in cultural life (Article 15).

The implementation of ICESCR is monitored by the CESCR Committee which was established under the resolution 1985/17 of the Economic and Social Council on 28 May 1985.  The CESCR Committee consists of 18 independent experts who are nominated by States Parties and elected for a renewable four-year term by the Economic and Social Council.

The following documents are issued by the CESCR Committee.

 

 

General Comments

The CESCR Committee has issued 24 General Comments which constitute non-binding yet authoritative interpretative guidance on provisions in the ICESCR. Save as for two General Comments, all mention disability. The two General Comments which do not specifically mention disability nonetheless refer to “vulnerable and marginalized groups”, and as such, can be read to include persons with disabilities. The two General Comments specifically addressing persons with disabilities are: General Comments No. 5: Persons with Disabilities, adopted in 1994, and General Comments No. 20: Non-discrimination in economic, social and cultural rights, adopted in 2009. General Comment No. 5 merits additional discussion as its contents are reiterated in General Comment No. 20.

In its General Comments No. 5, the CESCR Committee considers the rights in the ICESCR as dispensable in empowering people with disabilities and supporting them to actively participate in society. The CESCR Committee defined discrimination against persons with disabilities as “any distinction, exclusion, restriction or preference, or denial of reasonable accommodation based on disability which has the effect of nullifying or impairing the recognition, enjoyment or exercise of economic, social or cultural rights” (para. 15). It held that the denial of reasonable accommodation should be included in national legislation as a prohibited form of discrimination on the basis of disability. It further held that States Parties should address prohibitions on the right to education and denial of reasonable accommodation in public places (such as public health facilities and the workplace (para 20)) as well as in private places. For example, as long as spaces are designed and built in ways that are inaccessible to wheelchairs, persons in wheelchairs will be effectively denied their right to work.

 

Concluding Observations

The latest Concluding Observations on the second periodic report of China, Hong Kong and Macau published on 13 June 2014 deals at length with the employment of persons with disabilities.

 

In relation to China, the CESCR Committee expressed concerns that “despite the measures undertaken by the State party to promote access to employment and improve the working conditions of persons with disabilities, including through the establishment of the 1.5 per cent employment quota, the high rate of unemployment among persons with disabilities persists and that the existing disparities in relation to wages have not been effectively addressed”. The CESCR Committee urged China to “enhance its efforts to promote effectively the integration of persons with disabilities, especially into the labour market, including by strengthening the effectiveness of the system of job quotas and establishing an efficient enforcement procedure and remedies”. The Committee also recommended that effective measures be taken to improve the working conditions of persons with disabilities, including through the establishment of an obligation to provide reasonable accommodation in the workplace and introduction of the principle of equal pay for work of equal value. The CESCR Committee also requested the provision of disaggregated statistical data on the employment rate of persons with disabilities (para. 18).

In relation to Macau, the CESCR Committee noted that de facto discrimination persists against persons with disabilities, especially in employment, and recommended that all appropriate measures (including awareness campaigns) be taken to address that discrimination (para. 54).

Several of the latest Concluding Observations of the CESCR Committee on other countries address supported employment of persons with disabilities. They include:

 

Individual Communications

 

There has yet been any individual complaints made by States Parties to the CESCR relating to the employment of persons with disabilities.

 

   3. UN Human Rights Council 

The following documents concerning supported employment are issued by the Human Rights Council:

 

Thematic Study on Work and Employment of Persons with Disabilities

This Thematic Study was prepared by the Office of the United Nations High Commissioner for Human Rights on 12 December 2012 pursuant to a request by the Human Rights Council. It analyses relevant provisions of the CRPD, highlights good practices in promoting employment opportunities for persons with disabilities, and identifies the main challenges that States Parties encounter in ensuring that persons with disabilities enjoy access to, retention of, and advancement in employment on an equal basis with others.

 

The Thematic Study notes that a wide range of efforts have been undertaken by States Parties to promote the employment of persons with disabilities. Nevertheless, such efforts often focus on creating jobs or training opportunities in separate settings and fail to respect the principle of inclusion provided for in the CRPD. 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. More importantly, States Parties have an obligation to raise awareness among employers of their duty to employ persons with disabilities. In turn, employers in both the public and private sectors must proactively seek to create a working environment that welcomes persons with disabilities as employees.

 

The Thematic Study makes the following recommendations:

1. State Parties should impose accessibility requirements on private-sector employers which includes informing employers about their duty to identify and eliminate barriers that hinder persons with disabilities from accessing the workplace on an equal basis with others.

2. States Parties must take immediate action to enact and/or enforce legislation prohibiting disability-based discrimination in the area of work and employment, and ensure that legislation creates the obligation to provide reasonable accommodation and stipulates that denial of reasonable accommodation constitutes discrimination. States Parties should inform public and private-sector employers, as well as persons with disabilities, of the concept and implications of reasonable accommodation.

3. States Parties should ensure (i.e through legislation and other ways) equal access to vocational training and rehabilitation programmes that are non-discriminatory, accessible to, and inclusive of all persons with disabilities as well as guarantee that reasonable accommodation is provided. Employers must ensure that employees with disabilities have equal access to such programmes.

4. Social protection programmes should support persons with disabilities in seeking and maintaining work, and avoid creating “benefit traps” which discourage persons with disabilities from engaging in formal work.

5. States Parties are requested to include indicators on types of disability and work when collecting data on employment so as to allow for well-informed and targeted efforts to be made to improve the employment situation of persons with disabilities. Further, States Parties must involve representative organizations of persons with disabilities in the design, implementation, evaluation, and monitoring of all policies and programmes related to the employment of persons with disabilities. An independent mechanism to monitor the implementation of the CRPD, as provided for under Article 33, can play a role in creating stronger links between social partners already engaged in employment policy and monitoring and representative organizations of persons with disabilities.

 

The full text is accessible here (easy-to-read version is accessible here).

 

The ECtHR does not deal directly with the right to employment. However, Articles 8 and 14 are often engaged where persons with disabilities are denied employment opportunities due to their disabilities or due to the failure to provide reasonable accommodation. Article 8 guarantees an individual’s right to private and family life, whilst Article 14 prohibits discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.  Unfortunately, there is no case law so far that has pronounced directly on this issue.

In Bayrakci v Turkey (5 February 2016- see ECHR press release or French decision),  a tax official complained that the lack of toilet facilities at work after his accident rendered him 60% disabled (one leg amputated) and argued that his rights under Articles 8 and 14 were violated. The ECtHR, whilst accepting that the lack of suitable toilet facilities at his workplace could admittedly have had real and serious consequences for the Applicant’s daily life, such as to  arouse  feelings  of  humiliation  and  distress  that  could  impinge  on  the  quality  of  his  private life, declared the case as inadmissible because his failure to exhaust all domestic remedies (in particular, to bring his grievances before the administrative courts).

In January 2016, a case relating to the work conditions of personal assistants caring for persons with disabilities attempted to engage Article 4 of the European Convention of Human Rights (“ECHR”) (which prohibits forced or compulsory labour). In Radi and Gherghina v Romania (5 January 2016- see English decision), a nurse (the first Applicant) complained about disadvantageous working conditions attached to her contract as a personal assistant at a local authority. She had quit her job for the nursing position so as to take care of her disabled nephew (the second Applicant) after an accident. She claimed that she was only paid minimum wage, the nature of work performed was disadvantageous, and she had no entitlements such as holiday pay. The ECtHR found the Application to be manifestly ill-founded as the first Applicant had voluntarily entered into the employment contract with the local authority and was free to denounce it at any time without any consequences to her. She could also challenge the level of remuneration legally.

   4. European Court of Human Rights
 

 

   5. European Committee on Social Rights

European Social Charter

 

Article 15, paragraph 2 of the European Social Charter deals with the right to employment, which requires States to guarantee access to employment on the open labour market for persons with disabilities. Whilst States enjoy a margin of appreciation in the measures they adopt to enable this obligation, anti-discrimination legislation and protection against dismissal are required. Sheltered employment facilities reserved for persons with disabilities who, due to their disability, cannot be integrated into the open labour market should be the exception. States should aim to assist workers in migrating to the open labour market. Persons working in sheltered employment facilities, where production is the main activity, must enjoy the usual benefits prescribed under the State’s labour laws (particularly in respect of the right to fair remuneration and respect for trade union rights).

 

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