European Day of Disabled People
AN OPPORTUNITY FOR DISABLED PEOPLE AND OTHER VULNERABLE GROUPS
On 25 November 1999, the European Commission published its Proposal for a Directive in the area of employment and occupation. This initiative by the Commission was founded on the provision in Article 13 of the Treaty establishing the European Union (as modified by the Treaty of Amsterdam) for action to combat discrimination based on various grounds including disability.
This Directive was adopted by the Council of Ministers in 2000. It introduced a general framework for equal treatment for disabled people and various other groups who are vulnerable to social exclusion. Disabled people who believe that they are the victims of discrimination are able to seek redress in the courts; and penalties may be imposed on people and organisations who have failed to apply the principle of equal treatment to them.
The Directive prohibits discrimination on grounds of disability in relation to access to employment and occupation, promotion, vocational training, employment conditions, and membership of organisations of workers, employers or members of a particular profession.
It is believed that this initiative provides a real opportunity to give new impetus to the efforts throughout the European Union (EU) to enable disabled people to realise their full potential in the labour market. It also recognises that it will be necessary to ensure full implementation of the Directive, whilst also maintaining and developing other essential legislative and administrative provision.
A Conference was held in Brussels on 6 December 2000 that enabled all parties concerned (including disability organisations, employers, trade unions and officials at national and EU level) to develop their awareness of the issues relevant to achieving equal treatment for, and the benefits of including disabled people in the labour market. Also, action points were identified in relation to - the implementation of the Directive; the continuing need for 'positive action'; and the need to combat discrimination in other areas of life that may impact on employment.
1. Impact of the Directive
The Directive applies in all EU Member States; other countries in the European Economic Area (EEA); and, in due course, all accession countries. The transposition period for all Members States to change existing laws and other provisions to comply with the Directive was three years - the deadline would thus be around November 2003. However, Member States may have three more years to implement the provisions on age and disability if necessary.
The impact of the Directive will be most marked in those countries where there is no existing non-discrimination legislation. There will be significant implications for the approach towards disabled people in relation to employment by employers, trade unions, NGOs and other organisations with an interest in this area.
Employers, in particular, will need to review their policies and procedures in a wide range of areas including - selection criteria, and recruitment; the working environment; pay; induction; career development, training and promotion; and retention, re-training and re-deployment; and dismissals and retirement. It may also be appropriate to introduce disability awareness training for managers and staff, as well as training for the implementation of revised policies and procedures.
2. New Concepts to understand
The provisions of the Directive are based on the introduction of various concepts which are brought together for the first time in legislation at EU level relating to the groups concerned. For effective implementation of the Directive, it is essential that all interested parties acquaint themselves with, and understand these concepts:
Direct and Indirect Discrimination
The Directive makes a distinction between 'Direct Discrimination' and 'Indirect Discrimination'. The former occurs when a person is treated less favourably than others because of their disability. The latter occurs where a much higher proportion of disabled people than non-disabled people are liable to be adversely affected by an apparently neutral provision, criterion or practice which is not objectively justified by a legitimate aim.
The Directive makes employers responsible for providing a 'reasonable accommodation' for disabled people to enable them to access, or participate or advance in employment. In order to make a 'reasonable accommodation', employers may need to respond to the specific functional abilities of a disabled person by, for example, providing or modifying equipment, or facilities; or changing practices or procedures.
The requirement to make accommodations for disabled people is limited by specifying that employers will not be required to make 'reasonable accommodations' if this would result in a 'disproportionate burden' (or, as referred to in the Commission's original proposal 'undue hardship'). The assessment of 'a disproportionate burden' will take account of the size of a company and the availability of funds. Experience suggests that the cost of making a 'reasonable accommodation' is generally not very high.Burden of Proof
When a complaint of discrimination is made and evidence presented by the complainant, it will be for the respondent to prove that there has been no breach of the principle of equal treatment. NGOs may provide support for people who decide to take their complaint to a court or other competent authority.
3. More action to complement the Directive
The Directive includes a specific reference to the need for Member States to maintain and adopt 'positive action' measures on behalf of disabled people. Such action might include: quota - obligations to employ a certain percentage of disabled people; tax credits, subsidies and financial support for employers; financial support for placement services, training and a wide range of employment services including supported placements and workshops; protection against dismissal; arrangements for disabled people to offset disability related costs against tax; and subsidised transport.
It is believed that these two styles of approach - 'positive action' and 'non-discrimination legislation' are, in principle, entirely complementary, and that each approach is an essential complement to the other. There will be, therefore, a continuing need for 'positive action' measures to be maintained and developed.Discrimination in other areas of life
Similarly, it is not expected that the Directive will fully meet the needs of disabled people for protection from discrimination that may affect their ability to gain or retain employment.
A person's ability to realise their potential in the labour market can be severely limited or even completely denied by discrimination encountered in areas such as education, social services, transport, the 'built environment', and the Information Society.
The Directive focuses directly on employment. It will not, therefore, have any direct impact on discrimination in any of the areas mentioned above. A similar approach could, however, be an effective and just means of combating the effect of discrimination in other areas on the employment of disabled people.
Individual Member States may decide to implement similar legislative and other provision in other areas. However, such action could also be usefully promoted by further EU Directives. It is essential therefore that debate continues on what further action is needed and how it is most likely to be achieved.
The European Day of Disabled People is celebrated every year on and around December 3. The European Day has, since its launch eight years ago, been the occasion for many remarkable events.
Visit the EDF Homepage ( edf-feph.org) for an update on all activities at a European level and a calendar of activities happening throughout the European Union.