Article 27 of the CRPD and the Right of Inclusive Employment of People with Autism

Abstract

The protection of the rights to work of persons with disabilities is since long a challenge for international community. However, it is only with Article 27 of the United Nations Convention on the Rights of Persons with Disabilities that a coherent and complete protection of persons with disabilities in the employment sphere has been foreseen. The present paper addresses this issue with the aim of highlighting both the obligations stemming for States Parties and the obligations stemming for EU Countries, in particular after the accession to the Convention by the latter. The paper, indeed, analyses the pivotal impact that the UN Convention has exercised on the EU rules applicable to the protection of the right to work of persons with disabilities, especially on those fixed in the 2000/78/EC Employment Equality Directive. The paper, hence, addresses the judicial enlargement provided by the Luxemburg Court as far as the notions of ‘disability’ and of ‘reasonable accommodation’ with the goal of aligning EU law with the UN Convention. Finally, the implementation of such provisions within main EU legal systems is also reviewed.

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1 Introduction

According to global estimates, persons with disabilities constitute some 15 % of the world’s population. Between 785 million and 975 million of them are of working age (15 years or older)¹ and most live in developing countries where the informal economy employs a substantial proportion of the labour force. The labour force participation rate of persons with disabilities is low in many countries. Recent figures for members of the Organization for Economic Co-operation and Development indicate that slightly less than half of working-age persons with disabilities were economically inactive compared to one in five persons without disabilities of working age.² While it is difficult to draw comparisons between countries on rates of unemployment due to national differences in definitions on disability and statistical methodology, it is clear that an employment gap exists across countries and regions. As far as the EU, unemployment rate of persons with disabilities in the 2011 was at 17.4 %, a data lower than 2010 (when it was at 18.0 %), but however very far from the unemployment rate of persons without disabilities for the same year (at 10.2 %).³

Indeed, when persons with disabilities are employed, they are more likely to be situated in low-paying jobs, at lower occupational levels and with worst working conditions than their colleagues. More often than their peers, they are in part-time jobs or temporary positions, often with few possibilities for career development. The obstacles that such persons face in this regard are often related to negative attitudes or opinions, deeply rooted stigma and stereotypes and lack of interest of governments, employers and the general population. Lack of access to education and training in skills relevant to the labour market are also major barriers. Persons with disabilities are often seen as unfit for working life, incapable of carrying out tasks, as required in the open labour market, or better off in protected environments such as sheltered workshops. Worst data there exist as to the specific category of persons with autism spectrum disorder (ASD). Indeed, less than 10 % of people with ASD can get a job compared with 45 % of those with a disability, and 65.8 % of people without a disability.

2 The Right to Work and to Employment of Persons with Disability: Article 27 of the CRPD

The protection of the rights of persons with disabilities is since long a challenge for international community, and at the very least, as far as the employment sphere, since the International Labour Organization (ILO) Convention no. 159 concerning Vocational Rehabilitation and Employment of Disabled Persons (1983). However, it is only with the United Nations Convention on the Rights of Persons with Disabilities (hereinafter CRPD) that a coherent and complete protection of rights of persons with disabilities has been foreseen. Article 27 of the Convention sets out the right to work of persons with disabilities: it constitutes one of the most detailed provisions of the Convention, establishing the legal framework for State obligations in relation to work and employment of persons with disabilities.⁴

Article 27 (1) of the Convention obligates States parties to recognize the right of persons with disabilities to work, on an equal basis with others. It develops the provision of Article 23 of the Universal Declaration of Human Rights and employs similar language to that of Article 6 of the International Covenant on Economic, Social and Cultural Rights.⁵ It states that the right of persons with disabilities to work 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 and sets out a non-exhaustive list of appropriate steps for States parties to take, including through legislation, to safeguard and promote the realization of the right to work, including for those who acquire a disability during the course of employment.⁶

The right of persons with disabilities to work involves an obligation on the part of States parties to create an enabling and conducive environment for employment, in both the public and private sectors.

Article 27 of the Convention guides States parties in the implementation of the right of persons with disabilities to work by setting forth some basic rules: (a) non-discrimination, as the persons with disabilities have the right to work on an equal basis with others; (b) accessibility, as the right of persons with disabilities to work includes the opportunity to gain a living in a work environment that is accessible to persons with disabilities, identifying and removing barriers that hinder persons with disabilities from carrying out their work on an equal basis with others⁷; (c) reasonable accommodation, as with a view to facilitating access of persons with disabilities to work on an equal basis with others, States parties must ensure that reasonable accommodation is provided to persons with disabilities who request it, and should take effective steps, including through legislation, to ensure that the denial of reasonable accommodation constitutes discrimination; (d) besides a duty to impose obligations on private-sector employers, States should adopt positive measures to promote employment opportunities for persons with disabilities.

These standards, therefore, impose different levels of obligations on States: more in particular from one side States are obliged to abstain from infringing rights of persons with disabilities, and from another side the Convention requires them to adopt positive measures to promote employment opportunities for persons with disabilities and this especially with regard to private-sector employers.

Amongst the implementation measures that States parties should take on the basis of the Convention a pivotal role is played by the duty of aligning national standards and practice to the Convention. In this respect, Article 4 (1) (a) and (b) of the Convention imposes two general obligations on States parties; namely: (a) to adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the Convention related to work and employment; (b) to take all appropriate measures, including legislation, to modify or abolish laws, regulations, customs and practices that constitute discrimination against persons with disabilities in the areas of work and employment.

2.1 The Prohibition of Discrimination in the Workplace

The general principle of non-discrimination applies to employment as to all other sphere of life and the prohibition of discrimination against persons with disabilities is one of the main pillars of the CRPD. Indeed, discrimination on the basis of disability is defined in Article 2 of the Convention as ‘any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field…’. According to this provision this definition ‘includes all forms of discrimination, including denial of reasonable accommodation’. From this perspective, while the full realization of economic, social and cultural rights, including the right to work, is subject to the principle of the progressive realization,⁸ the prohibition of discrimination on the basis of disability is an obligation with immediate effect. States parties have an obligation to prohibit discrimination on the basis of disability and must ensure that persons with disabilities are protected from discrimination,⁹ including with regard to all matters concerning all forms of employment¹⁰ as in any other area.

What is important to stress here is the circumstance that the protection of discrimination covers all forms of employment: in the open labour market as well as in sheltered or supported employment schemes. In effect, the prohibition of (both de jure and de facto) discrimination should cover all aspects of employment, including, but not limited to, the following: recruitment processes such as advertising, interviewing and other selection processes; review of hiring standards to remove indirect discrimination that places persons with disabilities at a disadvantage; recruitment decisions; terms and conditions of employment such as remuneration rates, work hours and leave; promotion, transfer, training or other benefits associated with employment, or dismissal or any other detriment, such as demotion or retrenchment; benefits related to the (non-discriminatory) termination of employment; victimization and harassment; safe and healthy working conditions.

2.2 Accessibility to Workplace

It is well-established that accessibility is both a general principle and a substantive provision of the CRPD¹¹ and applies to workplaces (both public-sector workplaces and private-sector employers) as to all other spheres of life. States are required to take steps towards ensuring a fully accessible workplace: this obligation is crucial for removing the various barriers—physical, attitudinal, information-, communication- or transport-related—that prevent persons with disabilities from seeking, obtaining and maintaining work. Physical barriers such as inaccessible public transport, housing and workplaces are often among the main reasons why persons with disabilities are not employed. The simple fact that a workplace is not accessible does not justify the failure to employ persons with disabilities.¹² States have to inform employers—irrespective of size or sector—about their positive obligation to identify barriers to equal access to the workplace by persons with disabilities and to take appropriate steps towards removing such barriers. Good practices to this end include awareness-raising efforts among employers on the need to implement regulations relating to the creation of a barrier-free, disability-friendly environment, and the development of guidelines on accessibility and universal design for employer.

2.3 The Principle of Reasonable Accommodation as a General Rule of the CRPD and as a Specific Standard to Be Applied in the Workplace

The Convention includes the duty to provide reasonable accommodation,¹³ as defined in Article 2. According to this definition ‘reasonable accommodation’ has to be meant as the ‘necessary and appropriate modifications and adjustments 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 fundamental freedoms’. Furthermore, what is important to underpin is the circumstance that according to the CRPD the denial of reasonable accommodation constitutes a discrimination on the basis of disability. It follows that States must ascertain that the duty to ensure reasonable accommodation is introduced in their legislation and anti-discrimination legislation should define denial of reasonable accommodation as a form of discrimination.¹⁴ The abovementioned provision is reinforced by Article 5(3), which also requires States ‘to take all appropriate steps to ensure that reasonable accommodation is provided’. The incorporation of a State obligation to ensure that reasonable accommodations are adopted to facilitate the exercise by persons with disability of CPRD rights is perhaps the most fundamental instrumental element of the Convention. Indeed, such a broad scope to reasonable accommodation sets the Convention apart from its predecessors in international law, directly linking the absence of reasonable accommodation to the perpetuation of discrimination and inequality; furthermore, it affords to State parties the onus to take all appropriate steps to meet the reasonable accommodation requirement. Nevertheless, its formulation, very far from the optimal, may be narrow interpreted and unduly restrict the scope of application of the States’ obligations. In effect, the obligation ceases at the point where the adjustment required constitutes a ‘disproportionate or undue burden’. In the second place, the terms ‘disproportionate’ and ‘undue burden’ have been drafted as additive, effectively creating a two element test that may allow the obligation to be evaded at the lower of either threshold (which may vary according to context). In the third place, the thresholds themselves appear insufficiently challenging to penetrate to the core of exclusionary practices affecting persons requiring significant structural adjustments. They appear more likely to produce results for persons who require relatively marginal changes to the prevailing social environment. Finally, it should be also observed that the terminology ‘undue burden’ is far from being opportune in that it activates precisely the construction of persons with disability as ‘burdens’ on the community: an approach that the CPRD otherwise attempts to overcome.

2.3.1 The Reasonable Accommodation in the Workplace and Its Implementation

The most prominent application of the reasonable accommodation requirement remains in the field of work and employment. Article 27 of the CRPD requires States Parties to safeguard and promote the realisation of the right to work of persons with disabilities by taking appropriate steps to ensure that reasonable accommodation is provided to persons with disabilities in the workplace. Under the Convention, employers have a legal obligation to provide reasonable accommodation to persons with disabilities. Legislation must stipulate that both public- and private-sector employers are responsible for providing reasonable accommodation to individual employees with disabilities. Governments, hence, should develop policies aimed at promoting and regulating flexible and alternative work arrangements that reasonably accommodate the individual needs of employees with disabilities. Such policies should include, inter alia, adjustment and modification of machinery and equipment, modification of job content, working time and work organization, and adaptation of the work environment to provide access to the workplace, in order to facilitate the employment of individuals with disabilities. The implementation of the principle of reasonable accommodation in national disability-related legislation has been slow in many countries; this is due usually to several factors. In the first place, from the national law level, the notion of reasonable accommodation (an individual requirement) is often confused with accessibility measures (a general requirement) or with positive measure schemes. In the second place, this may be due to the reluctance of employers to recruit persons with disabilities determined by the fear of having to make expensive workplace adjustments. Indeed, a general misconception that all persons with disabilities will need reasonable accommodation or that accommodations will be too costly or difficult to provide, there exists.¹⁵ With a view to correcting misconceptions, States have the responsibility to inform employers of their duties to provide reasonable accommodation, to raise awareness on the concept among employers, trade unions and persons with disabilities, and to provide technical assistance on how to transform the provision into practice. The determination of what constitutes ‘appropriate measures’ is essential for the effective implementation of the duty to provide reasonable accommodation. It can be argued that measures are appropriate if they facilitate access to and participation in working life, job advancement and training on an equal footing with others for a person with disabilities requesting them. The identification of appropriate measures must be made on the basis of an individual assessment of the specific job, the needs of the person with a disability and a realistic assessment of what the employer is capable of providing. This process should be interactive and participatory to be effective, and all information related to the reasonable accommodation request should be handled with confidentiality.

2.4 Positive Measures to Promote Employment of Persons with Disabilities

Besides having a duty to impose obligations on private-sector employers, States have an obligation to take positive measures to increase employment of persons with disabilities in the private sector. The Convention establishes that States parties shall undertake measures to employ persons with disabilities in the public sector, and to 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 (Article 27(1)(h), also (e), (i) and (k)).

Usually, the most common employment promotion scheme tends to be the use of quotas. Most countries have legislation on the percentage of positions in the public-sector for persons with disabilities, and some also have quotas for the private sector, providing for sanctions for non-compliance.¹⁶ Existing quota systems can be divided into two main categories: strict quotas and flexible quotas. Strict quotas refer to schemes in which a person with a disability is treated preferentially irrespective of whether he or she is as qualified as other applicants. With flexible quotas, an applicant with a disability is treated preferentially only if he or she has equal merits and qualifications as another applicant. States are facing challenges in establishing effective positive measures that adequately advance equal possibilities for persons with disabilities to participate in working life. One concern is that they might send a (negative) message that persons with disabilities are hired solely on the basis of their disability, which can lead to reinforcement of stigma and negation of their role as professionals. For this reason, States are recommended to design positive measures in such a way that the potential negative element is minimized. The focus of these programmes should be on increasing recognition of the value of diversity in the workplace and equal career development for all. Programmes focusing on promoting employment of persons with disabilities should extend to all persons with disabilities, with a special focus on women and youth with disabilities, persons with intellectual or psycho-social disabilities and other potentially vulnerable groups.

3 The Implementation of Article 27 CRPD Within the European Regional System

3.1 The EU Rights-Based Approach

The EU accession to the CRPD in 2010¹⁷ ensured that the rights enshrined within the CRPD became part of EU law, albeit only to the extent that the EU has competence in the relevant field. The CRPD is now situated between primary and secondary law in the hierarchy of EU legislation, creating new standards of protection for persons with disabilities for the EU and its Member States. Therefore, the implementation of the rules on work and employment of persons with disabilities fall within European Union competence under two main aspects, at the very least. The EU has shared competence with member States with respect to the implementation of the right to employment and exclusive competence as regards the compatibility of State aid with the common market and the Common Customs Tariff.

As far as the first area of analysis, by the 1990s, the European Commission’s Communication on Equality of Opportunity for People with Disabilities: A New European Community Disability Strategy puts the focus firmly on the barriers facing persons with disability, noting that ‘our societies are, in many ways, organised for an “average” citizen without any disability, and, therefore, a great number of citizens are excluded from the rights and opportunities of the vast majority’.¹⁸ It also recognised the need to address disability discrimination far beyond employment, to cover education, mobility and access, housing and welfare systems. Amsterdam amending the Treaty on European Union (Amsterdam Treaty) marked a breakthrough in disability non-discrimination law, enshrining the principle of non-discrimination on the grounds of disability in primary legislation. Specifically including disability in the general non-discrimination Article 13, the Treaty expressly gave the European Community competence in the disability field for the first time. The non-discrimination approach in the field of disability was further embedded by Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (Employment Equality Directive). It sets out broad equality and non-discrimination objectives—specifically including disability—in the field of employment and, crucially, calls on Member States to ‘put into effect’ the principle of equal treatment. Disability rights protection was strengthened when the Charter of Fundamental Rights of the European Union (hereinafter ‘the Charter’), became legally binding with the adoption of the Lisbon Treaty in December 2009. Albeit limited to the areas of EU competence, the EU Charter of Fundamental Rights went beyond the Amsterdam Treaty in inserting Article 26 on the integration of persons with disabilities, reflecting core social model values of inclusion and equal opportunity, Article 21 by introducing a general prohibition of discrimination (explicitly mentioning the disability as one of the grounds of discriminations) and Article 15 on the protection of the freedom to choose an occupation and right to engage in work.¹⁹ The Charter also protects ancillary rights, such as the worker’s right to information (Article 27), the right of collective bargaining (Article 28), the right of access to placement services (Article 29), the right to protection in the event of unjustified dismissal and the right to just and favourable working conditions (Article 30). All such rights, obviously, do apply to persons with disability.

As far as the compatibility with EU State aid rules, the General Block Exemption Regulation (GBER) exempts from notification obligations aid for the recruitment of disadvantaged workers and aid for the employment of disabled workers totalling, respectively, up to EUR 5 million and EUR 10 million per undertaking per year.²⁰ The GBER covers aid for additional costs of employing disabled workers, such as the costs of adapting premises and equipment to disabled workers’ needs and the costs of employing staff to assist disabled workers (Article 42). Aid in the form of wage subsidies for employing disabled workers may cover up to 75 % of the wage costs and aid for up to 100 % of eligible additional costs of employing disabled workers. For the purposes of the GBER, a ‘disabled worker’ is defined as a person who has ‘a recognised limitation which results from physical, mental or psychological impairment’ or is recognised as a disabled worker by national law (Article 2(20)). The GBER may apply to support for the habilitation and rehabilitation of workers with disabilities, where such support constitutes State aid. In 2012, with its Communication on State aid Modernisation (SAM), the Commission launched a broad review of State aid rules. State aid enforcement should facilitate sustainable, smart and inclusive growth, focus on cases with the biggest impact on the single market, streamline the rules and provide for faster, better informed and more robust decisions. The reviewing process of the GBER has been completed in 2014 and the new GERB mechanism puts forward new ways of supporting the training and employment of workers with disabilities through the inclusion of new categories of eligible cost. It applies the term ‘worker with disabilities’ and adapts its definition to that in the CRPD.²¹

Lastly, another way in which Member States are permitted by EU law to favour disabled workers is through the use of disability considerations in public procurement processes. The revised public procurement Directives, adopted in 2014²² and replacing pre-existing legislation have broadened the possibility to reserve public contracts to certain economic operators. This will concern not only sheltered workshops, but also economic operators whose main aim is the social and professional integration of disabled or disadvantaged persons.

3.2 The 2000/78/EC Employment Equality Directive

Within the European legislation, specific legal discipline is provided by Council Directive 2000/78/EC (the so-called ‘Employment Equality Directive’); the Directive requires Member States to prohibit, inter alia, discrimination on the grounds of disability in the fields of employment, occupation and vocational training. According to the Directive, Member States are required to prohibit direct discrimination, indirect discrimination,²³ harassment, victimisation and instructions to discriminate on the grounds, inter alia, of disability.

As far as the CRPD ‘reasonable accommodation’ principle is concerned, Article 5 of the Directive deals with its implementation at EU level and requires that ‘reasonable accommodation’ be provided to guarantee compliance with the principle of equal treatment in relation to persons with disabilities. This means that employers and providers of vocational training must take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden is not regarded as disproportionate when it is sufficiently remedied by existing measures under the disability policy of the Member State concerned.²⁴ The duty of employers to adjust reasonable accommodation for disabled people is a key element of protection of persons with disabilities under the Directive. Employers must provide reasonable accommodation to enable a person with a disability to have access to employment and advance in it; however, Member States may decide whether to make exceptions as regards disability and age when it comes to employment in the armed forces: the EU reservation on Article 27 CRPD²⁵ follows the logic of Article 3(4) of the Directive.²⁶

The Commission has rigorously monitored the correct transposition of the Directive in national laws²⁷ and initiated several infringement procedures against Member States for incorrect implementation. Indeed, it is the Commission’s role to scrutinise whether a complaint reveals incorrect transposition or application of the Directives by the Member State concerned. At the moment, two non-conformity infringements cases²⁸ and three complaint-based cases under Directive 2000/78/EC are currently pending.²⁹ In 2014 the Commission published a report on the implementation of the Directive according to which, while all Member States have transposed EU rules in national law, further efforts are needed to apply them in practice, in particular through policy action, awareness-raising and training.³⁰

3.3 The Notion of ‘Disability’ of the Directive and ASD: The Judicial Enlargement Performed by the Case-Law of the CJEU and Its Effects on National Laws

Differently than Article 1 of the CRPD, the Directive does not define disability and therefore does not clarify which groups of persons are protected from discrimination. In particular, it does not expressly indicate whether persons with ASD are included. Indeed, it appears from the research’s findings that there is still a lack of clarity in European national legislations regarding the definition of disability and in particular whether it includes persons with ASD.³¹ In the majority of countries, the legislation transposing the Employment Equality Directive either does not define the term disability or provides language open to interpretation as to its exact scope of application. This highlights the importance of interpretation when applying such legislation and its capacity to confirm that the scope of protection extends to persons with ASD. There is thus the risk that narrower interpretations of the concept of disability in national legislation and in judicial case law may limit the scope of the protection offered by the Directive excluding certain groups, notably persons with social interaction, communication, and understanding impairments (this risk, therefore, main involve persons with ASD).³²

The CJEU case law has filled this gap by giving some landmark rulings on the ground of disability.

In the first place, in the 2006 case Chacòn Navas v. Eurest Collectividades SA, the Court by ruling that the concept of ‘disability’ ‘should be given an autonomous and uniform interpretation’, made a distinction between ‘sickness’ and ‘disability’ and concluded that whereas the latter is protected by the Directive the former is not automatically afforded protection.

In second place, in 2008, in the Coleman v. Attridge Law and Steve Law judgement,³³ the ECJ Court has enlarged the scope of application ratione personae of the Directive by stating that it includes also the protection against situations of ‘discrimination by association’ protecting victims of discrimination who do not themselves have a disability. According to the Court of Justice point of view, Directive 2000/78/EC protected a mother of a disabled child from harassment and discrimination in employment, when the problems were due to the fact that the mother needed extra time off to take care of her child.

Finally, in 2013 decision in the case HK Danmark ³⁴ the Court, while admitting that the concept of disability can in certain circumstances also include conditions caused by incurable or curable long-term illnesses, ruled that disability ‘…results in particular from physical, mental or psychological impairments which in interaction with barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long term one…’.³⁵ In sum, with such decisions the Court has upheld the position of the Advocate General Geelhoed who, in his Opinion on the case Chacòn Navas concluded that the concept of disability ‘must be interpreted autonomously and uniformly throughout the Community legal system’³⁶ but acknowledged the difficulties in finding a definition, as the concept of disability is ‘undergoing fairly rapid evolution’ and may be interpreted differently in different contexts.³⁷ He argued, therefore, that we should not endeavour to find more or less exhaustive and fixed definitions of the term ‘disability’,³⁸ and made a proposal that has inspired the Court in the HK Danmark judgment. At para 37 of the HK Danmark judgment, in effect, the Court noted how, after the judgment in Chacón Navas had been delivered, the European framework in this field changed due to the entry into force of the CRPD for the European Union.³⁹ Consequently, the European Union is bound by the Convention within the limits of its competences⁴⁰ and Directive 2000/78/EC must, as far as possible, be interpreted in a manner consistent with the Convention and with its principles.⁴¹ Among these principles the Court noted how the CRPD acknowledges in recital (e) that ‘disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others’; the Court went on noting also that in the second paragraph of Article 1 the CRPD states that persons with disabilities include ‘those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’.

At the end of the game, the extensive approach adopted by the CJEU has allowed the same Court to interpret discrimination on the grounds of disability in line with the spirit of the CRPD. The notion of disability developed by ECJ case law include three cumulative requirements: there must be a limitation which results in particular from physical, mental or psychological impairments; the limitation must hinder the participation of the person concerned in professional life; and it must be probable that the limitation will last for a long time.

ASD is consistent with this three-tiered test⁴²; therefore ASD fall within the scope of application of the EU legislation in this field area. At the end of the game, persons with ASD may receive protection under member States’ domestic legislation transposing the Directive, in two ways. In the first place, States may enact legislation, or amend already existing legislation, by which ASD is expressly included in the domestic legislative notion of disability.⁴³ In the second place, absent an explicit inclusion of ASD within legislative notion of disability, its up to the domestic courts, through their judicial interpretation activity, to render domestic law consistent with Directive’s and international standards by enlarging the scope ratione personae of domestic provisions on disability to persons with ASD. Lacking an action by domestic courts it is up to supra-national bodies of control (i.e. the CJEU in this case) to assure the full and correct transposition of the European principles.⁴⁴

3.3.1 Article 5 of the Directive and the Duty to Provide Reasonable Accommodation in the Field of the Employment

Provision of reasonable accommodation for disabled persons by the employer is one of the key elements of the Directive and the Commission has rigorously monitored its correct transposition in national laws.⁴⁵ In effect, Member States use different terminology to refer to the term ‘accommodation’ as set forth in the Employment Equality Directive. While many Member States chose to use the terminology of the Directive, others have replaced the word ‘accommodation’ with alternative terms such as ‘adjustments’, ‘steps’ or ‘measures’.⁴⁶ Furthermore, the comparative analysis of the national legislation transposing the Directive further reveals that the meaning of the term ‘reasonable’ has been interpreted by Member States in two different ways. While some Member States have interpreted the term ‘reasonable’ to refer to an accommodation which does not result in excessive costs, difficulties or problems for the employer,⁴⁷ others have associated the term ‘reasonable’ to the quality of the accommodation, meaning that the accommodation must be effective in terms of allowing an individual with a disability to carry out a particular set of employment-related tasks.⁴⁸

However, a number of Member States initially had problems in respect to the implementation of Article 5 of the Directive and were addressees of infringement procedures.⁴⁹

In the great majority of EU Member States, non-discrimination legislation contains a duty to provide reasonable accommodation for persons with disabilities. As for instance, the Estonian Equal Treatment Act, transposing the Employment Equality Directive, requires employers to ‘take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer’.⁵⁰ Similar provisions, as part of the transposing legislation, may be found, for example, in Finland,⁵¹ Poland,⁵² Spain,⁵³ Sweden⁵⁴ and the United Kingdom.⁵⁵ From this side, it may be argued that in a majority of countries, the scope of the transposing legislation that provides for reasonable accommodation can be interpreted to include persons with ASD. However, in some Member States, even though the transposing legislation provides for reasonable accommodation it does not contain a definition of disability, which makes assessing whether the duty to provide reasonable accommodation also applies to persons with ASD rather difficult. Only a judicial or quasi-judicial decision could clarify the situation. For example, in Greece, Article 10 of the transposing legislation closely follows the wording of the Employment Equality Directive, but as Law No. 3304/2005 does not provide any definition of disability, and there is, to date, no national case-law to provide guidance, it is unclear whether persons with ASD could benefit from the reasonable accommodation provision.

This situation may be perceived also in other EU countries in which the scope of the duty to provide reasonable accommodation is not the same as the scope of the prohibition of discrimination on the grounds of disability. For instance, in France, the obligation to provide reasonable accommodation is subject to an additional requirement to those laid down in the definition of disability under Article L 114 of the Social Policy and Family Code. Articles L 5212-13 and L 5213-6 of the Labour Code use a different and more limited definition of disability which stipulates that only individuals who are officially recognised as disabled can claim an accommodation. Therefore, ‘non-registered’ disabled people, along with all others not falling within the requirements laid down in Article L 5212-13 of the Labour Code, are not covered by the obligation of reasonable accommodation.

In Germany, the General Treatment Act, which transposes the directive, refers to the definition if disability in Article 2(1) of the Social Code Book. However, the duty to provide reasonable accommodation, according to Article 81(4) and (5) of the Social Code Book IX, applies to persons with a severe disability, defined in Article 2(3) of the Social Code Book IX as persons with a degree of disability of more than 50 %, or between 30 and 50 %, if they would be unable without equal rights provisions to find or keep suitable employment.

Persons with ASD may therefore only benefit from reasonable accommodation provisions insofar as they have a degree of disability of at least 30 %. The European Commission initiated infringement proceedings against Germany for incorrectly implementing its obligation to include regulations on reasonable accommodation under Article 5 of the Employment Equality Directive. Legal proceedings were closed in October 2010, after Germany presented draft laws implementing national case law which secured compliance with the Directive’s requirements.

One Member State (Italy) has been found to be in breach of the Directive by the CJEU on 4 July 2013 due to failure to correctly transpose the provision by not comprehensively covering all disabled persons. Indeed, while Legislative Decree No. 216/2003, which transposed the Employment Equality Directive, did not contain a reasonable accommodation clause, the national authorities argued that reasonable accommodation was provided for by measures in other pieces of legislation, such as Law No. 104/1992 and Law No. 68/1999. However, on 6 April 2011, the European Commission referred Italy to the Court of Justice of the European Union pointing out that Italy had not completely transposed Article 5 of the Employment Equality Directive. The European Commission considered that Italian law did not provide for a general rule of reasonable accommodation for persons with disabilities in all aspects of employment. On 4 July 2013 the Luxemburg Court upheld the position of the Commission and condemned Italy which has been obliged to amend its own legislation.⁵⁶ Quite all the remaining infringement procedures have been closed by now.

3.3.2 The Gaps of the Directive as to the Notion of ‘Reasonable Accommodation’

The Directive does not further define the concept of reasonable accommodation; in particular, it does not state, while CRPD does, whether denial of reasonable accommodation is a form of discrimination. Nevertheless, some guidance as to the meaning of the ‘appropriate measures’, which are required under the duty to provide reasonable accommodation is provided in Recital 20 of the Preamble, while Recital 21 elaborates on the concept of ‘disproportionate burden’.

National laws, however, should define closely what is meant by reasonable accommodation, so that misinterpretation is avoided and employers clearly understand what they must do. As for example, in the United States, the obligation to make a reasonable accommodation is to be found in the Americans with Disabilities Act 1990. Reasonable accommodation, hence, is understood to mean any change in the work environment or in the way a job is performed that enables a person with a disability to enjoy equal employment opportunities. There are three categories of reasonable accommodations: changes to a job application process, changes to the work environment or the way a job is usually done, and changes that enable an employee with a disability to enjoy equal benefits and privileges of employment, such as access to training. Furthermore, in other countries, including Australia,⁵⁷ New Zealand⁵⁸ and South Africa⁵⁹ legal provisions stipulating that the failure to provide a reasonable accommodation constitutes a form of discrimination there exist. This is consistent with provisions of the CRPD which stipulates that this failure be considered as a form of discrimination.

However, even in this circumstance the CJEU case law has played a vanguard role enlarging the scope of the protection afforded by the Directive. In its first decisions on the implementation of the Directive, indeed, the CJEU has also clarified what the notion of ‘reasonable accommodation’ has to be meant in the light of the CRPD standards. Under a first perspective in the 2013 Commission v. Italy case (C-312/11, decision 4 July 2013), the Court has clarified that mere support and incentives measures are not sufficient for assuring the fair and effective transposition of the directive; according to the Court, indeed:

il ne suffit pas, pour transposer correctement et pleinement l’article 5 de la directive 2000/78, d’édicter des mesures publiques d’incitation et d’aide, mais il incombe aux États membres d’imposer à tous les employeurs l’obligation de prendre des mesures efficaces et pratiques, en fonction des besoins dans des situations concrètes, en faveur de toutes les personnes handicapées, portant sur les différents aspects de l’emploi et du travail et permettant à ces personnes d’accéder à un emploi, de l’exercer ou d’y progresser, ou pour qu’une formation leur soit dispensée.

Under a second perspective, i.e. which are the appropriate measures that the employer is required to take in order to enable a person with a disability to have access to, participate in, or advance in employment, in the HK Danmark Judgment, the Court has underpinned, and despite the contrary opinion of the national employers, that as recital 20 in the preamble to Directive 2000/78 and the second paragraph of Article 2 of the CRPD envisage ‘not only material but also organisational measures, and the term ‘pattern’ of working time must be understood as the rhythm or speed at which the work is done, it cannot be ruled out that a reduction in working hours may constitute one of the accommodation measures referred to in Article 5 of that Directive’ (para 55).

3.4 The Council of Europe Standards on Reasonable Accommodation

Council of Europe standards do not make reference to the terminology ‘reasonable accommodation’ as such, instead using the term ‘reasonable adjustment’. Article 15(2) of the European Social Charter (revised) calls on Parties to ‘adjust the working conditions to the needs of the disabled’ and Article 15(3) urges them to promote social integration and participation in the life of the community ‘through measures, including technical aids, aiming to overcome barriers to communication and mobility and enabling access to transport, housing, cultural activities and leisure’. Case law delivered on this issue by the European Committee on Social Rights has confirmed the duty of States to provide reasonable accommodation under Article 15(2) of the revised Charter and has also concluded in several occasions for non-conformity with this provision⁶⁰ demonstrating to considering the duty of reasonable accommodation as a crucial requirement in non-discrimination legislation in the area of disability. As for instance, in its 2003 Conclusions on France, the Committee specifically asked France to provide further information ‘on how the concept of reasonable accommodation is incorporated in the legislation’.⁶¹

As far as the European Convention on human rights, the ECtHR case law has also reinforced member States’ duty to provide reasonable accommodation, and by adopting a wide approach to its interpretative activity has derived the duty to accommodate from some provisions of the Convention in some cases. In the case of Glor v. Switzerland, where the Court found a violation of Article 14 in conjunction with Article 8 of the ECHR, it suggested that people in the applicant’s situation might be offered the possibility of alternative forms of service in the armed forces that entailed less physical effort and were compatible with the constraints of a partial disability. Moreover, for the first time the Court’s judgment makes explicit reference to the CRPD as an example of the existing European and universal consensus on the need to protect persons with disabilities from discriminatory treatment.⁶²

Turning to the CoE Committee of Ministers, the Recommendation No. Rec(2006)5 containing the Action Plan to promote the rights and full participation of people with disabilities in society: improving the quality of life of people with disabilities in Europe 2006–2015 (hereinafter the Action Plan)⁶³ refers to the need for ‘reasonable adjustments’ in order to achieve the objective of full participation of persons with disabilities. More in particular, Action line No. 5 on employment, vocational guidance and training asks Member States to make reasonable adjustments. States must ‘ensure that people with disabilities have access to vocational guidance, training and employment-related services at the highest possible qualification level, and making reasonable adjustments where necessary’.⁶⁴ States must also encourage employers to employ people with disabilities by, for example, ‘making reasonable adjustments to the workplace or working conditions, including telecommuting, part-time work and work from home, in order to accommodate the special requirements of employees with disabilities’.⁶⁵

4 The Impact of the Financial and Economic Crisis on the Implementation of Art 27 Rights and the Progressive Realization of Economic, Social and Cultural Rights

Some final remarks are required as to the relationships amongst the State duty to assure the right to employment of persons with ASD, the contemporary economic crisis and the principle of progressive realization of rights in the field of ESC rights. Indeed, the full implementation of Article 27 rights requires that adequate resources be allocated to this goal by States. However, the available resources may be increasingly limited, and the resource allocation undermined, by the contemporary financial crisis and economic recession, as well as by anti-crisis measures to be adopted by States for the alleviation of their debt and debt-service burdens. Such measures, in fact, usually apply structural adjustment policies aimed at curbing public expenditures for social welfare, or involve measures of privatization of the economy and, consequently, oblige States to re-allocate resources with the view of ensuring strict compliance with the commitments derived from international agreements on foreign debt. This occurs even at the cost of reducing the allocation of resources for realizing other international obligations, such as those prescribed by international human rights and, especially, by economic, social and cultural rights.

In sum, States might pretend that as every other ESC rights, the full realization of right to employment of persons with ASD too should be subject to progressive realization and, therefore, be implemented only within the extent permitted by available resources. Realization of this right could be hampered by a lack of resources and be achieved only over a period of time. States, in the second place, might pretend to be legitimized to derogate from respecting their duties in the field of the employment of persons with disabilities in response to the exceptional and emergence situations such as the global financial crisis and to the debt restructuring mechanisms.⁶⁶ As far as the first aspect, there are some duties deriving from Article 27 CRPD which States may not derogate. Indeed, even if the principle of progressive realization describes a pivotal aspect of States’ obligations in connection with economic, social and cultural rights under international human rights treaties, and even if this principle is well-established in these treaties, included the CRPD’s Article 4,⁶⁷ the CRPD Committee has recently clarified in its Concluding Observations on Spain that ‘the duty to provide reasonable accommodation is immediately applicable and not subject to progressive realisation’.⁶⁸ From this perspective it might be argued that the duty to provide reasonable accommodation may be seen as a kind of ‘minimum core obligation’ under CRPD. As far as the second aspect, who is writing has already demonstrated⁶⁹ that even in situations of financial crisis and recession—perhaps, especially in such situations—States are not completely boundless with regard to economic, social and cultural rights because these rights may not be considered to be at States’ complete discretion. On the contrary, even in these dramatic circumstances, States are requested not to distribute the burden of the rigour unequally among social groups, omitting to afford protection to vulnerable and disadvantaged groups that make up the at-risk categories during such circumstances. Furthermore they bear the immediate due diligence duty to strike a fair balance between obligations arising from their external debt objectives, for example, the implementation of austerity measures for consolidating public spending, and the obligations enshrined in international human rights law: in these circumstances, striking the fair balance requires that austerity measures be enforced by avoiding any discrimination amongst individuals or amongst groups of individuals and be consistent with the principles of reasonableness and proportionality. This applies also to the enforcement of the principle of reasonable accommodation in the field of the employment of persons with disability or with ASD.

5 Conclusions

Individuating best practices as far as implementation of Article 27 CRPD and the degree of employment inclusion of persons with ASD is a hard task. Several requirements have to be assessed from this perspective: from the existence of an enabling legal environment, enhancing accessibility and addressing misunderstandings concerning people with disabilities to the presence of vocational and skills training opportunities for persons with disabilities. Moreover, the level of protection of employment rights of autistic persons in each country depends by several factors including social, cultural and economic circumstances: these factors may change on the basis of countries concerned. From this perspective, according to our point of view, there is no a one size-fit-for-all approach in the normative implementation employment rights of persons with ASD, but different régimes may be enforced, on a case by case basis, with the aim of striving at maximum Article 27 rights.

However, what emerges from the analysis performed is the circumstance that disability-related legislations to be adopted at national level in this field area have to rely on two ‘normative principles’, at the very least. In the first place, the adoption of a normative definition of disability sufficiently wide in order to include ASD cases and, in the second place, the avoidance of national legislations ambiguous about whether failure to provide reasonable accommodation is to be treated as a form of unlawful discrimination.⁷⁰ These two principles have to be regarded as benchmarks to be applied by national States in implementing legislations.

As far as the notion of disability the new Croatian Social Care Act of 2012 may be cited. The 2012 Act adopts the definition of disability provided by the UN CRPD and defines a person with a disability as a person with long-term physical, mental, intellectual or sensory impairments that, in interaction with various barriers, may hinder her full and effective participation in society on an equal basis with persons without disabilities: a definition that, as we have seen before, is sufficiently broad and may be interpreted as including also ASD.

Other countries have preferred to include explicitly ASD in normative definition of disability at national level, by adopting specific provisions in this sense. In Ireland, the 2012 Autism Bill aims to provide for an autism strategy to provide a coherent and national framework for addressing the specific needs of adults with ASD. Its Section 1 amends the definition of “disability” in the Employment Equality Act 1998 to include specific reference to autism. Section 2 makes similar provision in the Equal Status Act 2000.⁷¹ Similarly, in UK, who enacted in 2009 a specific legislation in the field of autism (the 2009 Autism Act), the Section 6 of the 2010 Equality Act provides with a wide-range definition of disability, consistent with the CRPD, as a physical or mental impairment which has a substantial and adverse long-term effect on the person’ ability to carry out normal day-to-day activities. What is important to stress here is the circumstance that according to the ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ for the purposes of the 2010 Act the notion of ‘impairments’ have to be interpreted as including ASD.⁷²

As far as the need for treating the failure to provide reasonable accommodation as a form of unlawful discrimination, in France, the failure to meet the duty constitutes unlawful discrimination, even if it is not specified whether this is classified as direct or indirect discrimination.⁷³ In Sweden, on the contrary, failure to provide reasonable accommodation is treated as direct discrimination in the fields of employment and education,⁷⁴ while failure to provide reasonable accommodation is treated as indirect discrimination in Austria and Denmark.⁷⁵ Furthermore, in the United Kingdom failure to provide reasonable accommodation is defined as a specific form of discrimination⁷⁶ and in the Netherlands as a prohibited form of distinction.⁷⁷

Finally, other countries have chosen to adopt a broader approach to this issue. Interestingly, according to Slovakia law, failure to provide reasonable accommodation is regarded as a violation of the principle of equal treatment (which is broader than the prohibition of discrimination and its individual forms and also encompasses the duty to adopt measures to prevent discrimination) and it does not equate to direct or indirect discrimination. However, this does not mean that in specific situations the actions or omissions of an employer cannot at the same time also fall within definitions of the specific forms of discrimination defined by the Slovak Anti-discrimination Act: mainly direct or indirect discrimination or harassment.⁷⁸