The UN Committee on the Rights of Persons with Disabilities released its new General Comment 8 on the right to work and employment. The General Comment, released on 9 September, explains the Committee’s interpretation of Article 27 of the Convention on the Rights of Persons with Disabilities (CRPD).
It comes after a lengthy consultation process in which we were involved. The resulting text clarifies how we should interpret many of the provisions on work and employment present in the UN Convention on the Rights of Persons with Disabilities. In the end, this interpretation will help State parties of the Convention report about their legal, political and socioeconomic contexts affecting the employment-related rights of persons with disabilities.
The Comment provides clarity on:
- Open labour market and sheltered employment;
- Discrimination at work or during recruitment;
- Reasonable accommodation;
- Working conditions and pay.
The most important point is that General Comment 8 clarifies the issue of sheltered employment, especially which kind of sheltered settings go against the Convention. It explains that “Article 27(1) expressly identifies that persons with disability have a right to ‘work on an equal basis with others {which includes} work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to all. These words clearly indicate that segregated employment settings are inconsistent with the right.”
The General Comment further specifies that:
“segregated employment, such as sheltered workshops, includes a variety of practices and experiences, characterized by at least some of the following elements:
(a) They segregate persons with disabilities from open, inclusive and accessible employment;
(b) They are organized around certain specific activities that persons with disabilities are deemed to be able to carry out;
(c) They focus on and emphasize medical and rehabilitation approaches to disability;
(d) They do not effectively promote transition to the open labour market;
(e) Persons with disabilities do not receive equal remuneration for work of equal value;
(f) Persons with disabilities are not remunerated for their work on an equal basis with others;
(g) Persons with disabilities do not usually have regular employment contracts and are therefore not covered by social security schemes.”
It should be noted, however, that the General Comment allows one exception to this by explaining that “Employment ventures that are managed and led by persons with disabilities, including those that are jointly owned and democratically controlled may not be considered segregated employment if they provide just and favourable conditions of work on an equal basis with others.”
Discrimination at work or during recruitment
The Committee clarifies that there are four main types of discrimination that can occur in employment and recruitment, sometimes simultaneously.
These are:
- direct discrimination: this occurs when, in a similar situation, persons with disabilities are treated unfavourably because of any reason related to their disability;
- indirect discrimination: the application of laws, policies or practices that appear neutral but have a negative impact on persons with disabilities, or an opportunity that excludes persons with disabilities because the framing of the opportunity does not take account of their situation;
- denial of reasonable accommodation: when the necessary and appropriate individualised modifications, adjustments and supports (that do not impose a disproportionate or undue burden) are not implemented;
- harassment: a form of discrimination when unwanted conduct related to disability or other prohibited grounds takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment.
The General Comment also underlines that “protection from discrimination also extends to discrimination by association, which may occur when family members or a person who is associated with a person with disability is discriminated at work”.
Reasonable accommodation
Reasonable accommodation means adaptations to a workspace, role or working conditions to enable a person to do their job. It is the area where the most clarification was needed.
The General Comment explains that “to fall within the concept of reasonable accommodation, the changes need to be negotiated with the individual. The duty to provide reasonable accommodation is applicable from the moment that a request for such accommodation is received or the need becomes apparent.” On this last point, it goes further by clarifying that “The duty to provide reasonable accommodation is from the moment that a person with disabilities seeks to exercise their rights or requires access in non-accessible situations or environments”.
It gives further guidance on how the process of providing reasonable accommodation should be approached, explaining that:
“Where a barrier to full inclusion of a person with disabilities is identified by the individual or the organisation, the following steps must be taken:
(a) the organisation works with the individual to identify potential solutions to remove or avoid the barrier, including the preferred solution for the person with disabilities
(b) the organisation implements the preferred solution, unless it would impose an undue burden. Where this is the case, the organisation should implement another identified solution that does not impose an undue burden, or implement the preferred solution to the extent possible without experiencing the undue burden.”
Finally, the CRPD Committee concludes clearly that “a failure by the organisation to implement these steps would be a denial of reasonable accommodation” which would thus constitute a form of discrimination against the employee.
Therefore:
- Reasonable accommodation must be negotiated with the individual;
- The individual’s preferred solution is the best unless it imposes undue burden
- Undue burden means that the required effort would be unduly costly, difficult, extensive, substantial, or disruptive, in light of the totality of the circumstances.
- Failure to provide reasonable accommodation is discrimination.
Working conditions and pay
One of the big issues faced by workers with disabilities is being paid below minimum wage, sometimes without a proper working contract and working rights.
Regarding pay, the General Comment states quite clearly that “workers with disabilities have the right to receive equal remuneration as workers without disabilities when they perform the same or similar jobs. Further, their remuneration should also be equal even when their work is completely different but nonetheless of equal value.”
On the topic of pay in sheltered workshops, while the Committee strongly urges a transition away from such types of employment, they nevertheless stress the need for segregated work settings to ensure fair remuneration while they are still in operation.
With regards to working conditions, the General Comment specifies that “just and favourable conditions of work for persons with disabilities includes the benefits and protections enjoyed by other workers, such as a retirement benefit fund, sick leave, long-service leave, parental leave, promotion, rest, leisure and periodic holidays with pay.”
Therefore:
- Equal remuneration is essential
- Sheltered employment, while it exists, must ensure fair pay;
- Workers with disabilities must access all benefits on an equal basis with others: social security, sick leave, and retirement.
Other important aspects
Following our advocacy, the General Comment refers to the importance of workers with disabilities being able to retain disability allowance.
The General Comment also refers to the need for positive measures to improve employment opportunities in the open labour market, with a particular focus on women and young persons with disabilities who, among other groups, suffer intersectional discrimination in employment.
- The potential of quota systems to improve employment opportunities, especially in the public sector.
- The need for the promotion of self-employment that is regularised and allows social entrepreneurs sufficient protection and job security.
- The need to ensure that persons with disabilities are not restricted to certain types of occupation only and to prohibit “fake” employment whereby persons with disabilities are engaged by employers but do not perform work or do not have meaningful employment on an equal basis with others.
Finally, the General Comment strongly condemns unpaid internships and work experience.
Related documents
Contact
Haydn Hammersley, Senior Social Policy Officer
Feature image credits: Cislo Jacek