The Right to Work for People with Disabilities – International Perspectives.

International Conference at the University of Kassel (March 8 – 10, 2017)

Closing Speech

Barriers and Opportunities for Persons with Disabilities to change from Sheltered Employment Settings into an Open and Inclusive Labour Market – Positions of UN Bodies and some Global, Regional and National Disabled People Organisations (DPOs).

Klaus Lachwitz,

President, Inclusion International, London,

Secretary General, International Disability Alliance, Geneva

  1. 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 inclusionof persons with disabilities in society as described in the General Principles of the CRPD (Art. 3 c.).

  1. 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 successfully implement the Human Right to Work and Employment:

-It is the recognition of the right of persons with disabilities to work on an equal basis with others. This does not mean to work in the same way as non - disabled persons,but the basis for work must be equal in comparison with the working conditions of non - disabled workers. Careful examination of such working conditions shows that there is hardly any country in the world which guarantees employment for all people of working age. But usually all persons can apply freely for work and employment, if they are qualified for the work they want to carry out.For persons with disabilities this means that labour laws and practices which limit their work perspectivesin comparison with non - disabled workers to a small number ofprofessions, low – skilled jobs or restricted work only, even though they are qualified and / or capable to perform other kinds of work, are not in line with Art. 27 CRPD.

-The requirements of Art. 27 para. 1 are met only, if the work offered to persons with disabilities includes the “right to the opportunity to gain a living”, i.e. to receive a remuneration for the work performed.

-It must be a work opportunity “freely chosen and accepted”, i.e. a person with disability seeking work must have the chance to choose between different options of work and employment.

-Finally Art. 27 para. 1 prescribes that the work opportunity must be provided “in a labour market and work environment that is open, inclusive and accessible to persons with disabilities”. This requirement contains two different aspects for the implementation of Art. 27. First of all it means that persons with disabilities should not be restricted to work opportunities which are segregating them from non - disabled workers by forcing and limiting them to work in workshops, institutions and comparable settings which are not part of the open labour market and which are not inclusive. And secondly it contains the obligation of States Parties to safeguard and promote the right to work as described in detail in Art. 27 para. 1 a – k by helping to establish and provide a labour market and work environment at national level that is open, inclusive and accessible not only to non - disabled workers, but also to persons with disabilities.

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 para. 3 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.

Accessibilty 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 Accomodation:

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.2para. 4 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 clearly structured and sets distinctcriteria for the implementation of the Right to Work and Employment of Persons with Disabilities.

  1. Implementation of Art. 27 CRPD by the UN - States Parties with regard to persons with intellectual, psychosocial and multiple disabilities

From a global perspective it must be mentioned that persons with intellectual, psychosocial and multiple disabilities belong to the poorest of the poor in many parts of the world. According toHuman Rights Watchmany disabled persons are forced to live in the deplorable conditions of mental asylums. Reports published byHuman Rights Watch describe and showhorrible camps for persons with disabilities in Ghana. Indonesia, Mexico etc. In Russia and some of the former Soviet Union countries for decades new born children with intellectual disabilities were taken away from their parents at birth and detained in orphanages where many of them still live without education and work opportunities.

In many parts of Africa, Asia and Central and South America treatment, care, education etc. totally rests on the shoulders of parents and other members of the family as community services to assist, train and promote persons with profound disabilities are not available. Not all families are capable to carry out these tasks themselves. Some persons with intellectual or psychosocial disabilities are, therefore, hidden by their families and separated from participation in social life. Even in countries belonging to the Global North there are huge institutions which segregate persons with disabilities from non – disabled persons.In its General Comment on Art. 12 CRPD (Equality before the Law) the UN Committee on the Rights of Persons with Disabilities states: “There is a widespread denial of legal capacity to persons with disabilities which allows others to consent to their placement in institutional settings. The directors of institutions are… commonly vested with the legal capacity of persons with disabilities residing therein” (United Nations CRPD/C/GC/1, May 19, 2014 No.46). As a result of that it is hardly known whether some of these institutions provide work opportunities or not. According to the new Zero Project Report 2017 on “Employment – Work and Vocational Education and Training” which describes 56 innovative practices, 11 innovative policies and 21 social indicators with regard to the right to work and employment from 121 countries there is “a worldwide gap on data about people living in institutions” (p. 38). The same applies for sheltered workshops and comparable settings. They exist in many countries of the Global North, for instance in many parts of the European Union, and in countries with emerging markets, but based on 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” sufficient data is not available as there is no common definition of sheltered workshops in the EU Member States and in other countries. The reason is that the national social laws defining and describing sheltered workshops are different. Therefore it is not possible to collect, for instance, 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. According to the German Federation of Workshops for Persons with Disabilities (BAG WfbM) there were 680 workshops for persons with disabilities all over Germany in 2016 with 2759 manufacturing sites.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 belowthe average earnings, but also far below the subsistence level.

There are another 17062 persons with severe disabilities working and assisted in separate parts of the work areas of the workshops without receiving social security and without getting any kind of a basic remuneration.

Thus more than 300 000 persons with disabilitiesare working in sheltered workshops in Germany and the number is increasing year by year.

One of the reasons for keeping or even enlarging sheltered workshops is thatin particular many older parents of sons and daughters with intellectual disabilities defend the existence of workshopsas in their view many of them provide workplaces and staff members of high quality and developcreative methods to manufacture products and to offerservices which are useful and in line with the requests of many persons with disabilities in the workshops. Many self –advocates and younger parents of persons with intellectual disabilities, 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 possibleto 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, infacilities 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 workfor 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 remainworking 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 are characterized as being unable to be included 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 persons 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.

The Views of UN Bodies and Global, Regional and national DPOs on Sheltered Workshops:

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.

Position of UN Bodies:

This has, for instance, been stated 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. The Committee recommends that the State Party enhances programs to employ persons with disabilities in the open labour market.”

Czech Republic:

“The Committee notes with concern the high unemployment rate of persons with disabilities and that close to one third of employed persons with disabilities work outside the open labour market.” The Committee urges the State Party “to develop measures, intensify efforts and allocate sufficient resources to promoting the employment in the open labour market of persons with disabilities, especially women.”

Italy:

“The Committee is concerned that persons with disabilities in the State Party may be restricted to the performance of certain professions on the grounds of disability. The Committee recommends that the State Party “removes any legislation limiting the right of persons with disabilities to perform any profession on the grounds of their disability.”