The likelihood of Disabled People to employed in the regular labour market is still significantly lower than for non-Disabled People. The European Union and the member states should adopt stricter employment protection legislation and ensure effective enforcement.
Florian Sanden – European Network on Independent Living, ENIL
Article 27 of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) establishes that “States Parties recognize the right of persons with disabilities to work, on an equal basis with others […] States Parties shall safeguard and promoted the right to work”.
Article 19 of the UNCRPD recognizes “the equal rights of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right”.
According to General Comment No 5 independent living means that Disabled People exercise choice and control over their lives and specifies that: “Personal autonomy and self-determination are fundamental to independent living, including access to […] decent employment”. Since equal access to all areas of life is a key component of independent living it follows that article 19 relates to all other provisions of the UNCRPD. General Comment No 5 underlines this implication: “Article 19 is one of the widest ranging and most intersectional articles of the Convention”.
The UNCRPD entered into force in the EU in 2011. The facts and figures on access of Disabled People to employment point to the urgent necessity to step up implementation of article 27.
The full extent of the problem
First of all, there is a significant disability employment gap (DEG) in all EU countries. The likelihood of being employed decreases sharply for a person if a disability is present compared to persons without disabilities. Between countries the DEG varies between 10 to 42 percentage points. In the EU as a whole 50,6% of disabled people are employed, compared to 74,8% of people without a disability. For individual disabilities the situation can be worse. Out of 30 million blind and partially sighted persons the unemployment rate is 75%. Among autistic people, only 10% are in employment. According to the ENIL Independent Living Survey from 2020, 96% of respondents found labour market access to be inadequate or requiring improvement.
Second, even if a Disabled Person has work, the employment conditions are worse than for non-Disabled People. 11% of Disabled People in employment face in work poverty compared to 9,1% of people without a disability. According to the ENIL shadow report on the implementation of the UNCRPD, Disabled People are more likely to receive temporary contracts, lower wages and are more likely to lose their jobs in economic recessions.
Third, the risk of poverty and material deprivation is higher for Disabled People. 29,5% of disabled women and 27,5% of disabled men are at risk of poverty and social exclusion compared to 22,4% of the entire population. A disproportionate number of Disabled People are homeless and there is an increased risk of becoming homeless.
Sheltered workshops do not work
To increase employment participation of Disabled People European governments traditionally pursue active labour market policies (ALMPs). A key component of ALMP policies is the creation and maintenance of sheltered workshops which are also referred to as supported employment. How many Disabled People across Europe work in sheltered employment exactly is currently unknow. The European Strategy for Persons with Disabilities 2021-2030 however admits that a “large number of persons with severe disabilities do not work in the open labour market, but in facilities offering so-called sheltered employment”. There is evidence that in Germany alone 330.000 Disabled People work in sheltered employment.
According to the report by Member of the European Parliament (MEP) Katrin Langensiepen, published in 2021, “models of supported employment may […] serve inclusion and transition into the open labour market. Anecdotal evidence indicates that transitions from sheltered workshops into the regular labour market are rare and that sheltered employment is mostly intended as an alternative to normal employment. A recently published empirical study underlines this evidence gathered from feedback from people working in sheltered workshops. Researcher used statistical multilevel regression models, including the edureg prodecure to measure the influence of active labour market policies on the Disability Employment Gap. The results showed a negative association between the share of GDP the public sector spends on ALMPs and the employment status of Disabled People. The conclusion: The higher the employment of Disabled People in sheltered workshops, the lower the employment in the regular labour market, the higher the disability employment gap. Such evidence sheds doubt on the claim that sheltered employment can function as a transitional step towards normal work.
Better approaches
The same study also investigated the effect of employment protection legislation (EPL), such as laws forbidding discrimination against disabled employees, on the disability employment gap. The regression analysis found a positive association between EPL for regular and temporary contract and employment status. In other words: Stricter employment protection legislation, increases the likelihood of Disabled People being employed and a smaller disability employment gap.
Directive 2000/78/EC of the Council of the European Union, also called the Employment Equality Directive, protects Disabled People against discrimination in the workplace and obliges employers to provide reasonable accommodations. In the ENIL Independent Living Survey, 41 out 43 countries found their national labour market legislations to be inadequate or requiring improvement. Since the national employment protection legislation of the EU member countries is based on the employment protection directive, this is a direct critique as to its effectiveness. In addition, there is evidence that the directive is not in line with the UNCRPD. The European Parliament publicly deplored the uneven and poor implementation and the lack of clear guidelines on what constitutes reasonable accommodation.
Revising the Employment Protection Directive
The Langensiepen report rightly calls for a revision of the Employment Equality Directive as soon as possible. In line with the empirical findings described before, the directive should become stricter. Clearer definitions of what constitutes discrimination and reasonable accommodations are needed. How to prove a discrimination has taken place also requires clarification. Moreover, the renewed directive should specify measures in case of non-compliance and require the adoption of positive action measures.
Improving implementation and enforcement
According to ENIL shadow report, pages 35f, the European Commission usually ignores complaints for breaches of EU law in the area of disability. To improve the uneven and poor enforcement of the Employment Equality Directive, the European Commission should not hesitate to launch infringement procedures in cases of non-compliance, a position that is also shared by the Langensiepen report. According to a European Commission document, in 19 countries, less than 10% of the employers are inspected throughout a year. The document proposes to reinforce the capacity of labour inspectorates. In 2019 the European Union founded the European Labour Authority (ELA) to support member states in implementing relevant EU legislation. So far ELA seems to be focusing on improving cooperation with national labour inspectorates in cross-border topics like intra-EU labour mobility and social security coordination. ELA´s scope of activity should be expanded to the enforcement of directive 2000/78/EC. ELA should cooperate with national labour inspectorates to encourage ex-ante investigations into the correct application of the EU equality directive or possible receive the competence to conduct such inspections itself.
Quotas
In some EU countries, such as Germany, employers are obliged to ensure 5% of their workforce are severely disabled if they have 20 employees or more. Due to ineffective sanctioning mechanisms, this obligation is largely regarded as ineffective. The Langensiepen report proposed the introduction of compulsory workplace diversity quotas, involving effective and proportionate sanctions for non-compliance. The introduction of an EU wide disability quota should be considered. In parallel the EU should recommend the introduction of such a quota to all of its member states.
To decrease the Disability Employment Gap many ideas are on the table. The next step is implementation.
