On 8th September 2022, the UN Committee on the Rights of Persons with Disabilities released its new General Comment on the right to work and employment. The aim of the General Comment is to clarify how State Parties to the Convention on the Rights of Persons with Disabilities (UN CRPD) should interpret the obligations enshrined in Article 27 of the UN CRPD. The General Comment also considers the interdependence of the measures on the right to work listed in Article 27 UN CRPD, and the interrelationship of the right to work and employment with the other articles of the UN CRPD Convention, for instance those on general obligations. It is important to note that the General Comment does not hold the same legal weight as the Convention itself, but rather it provides an explanation of its legal obligations. Accordingly, the General Comment’s aim is to support State Parties to the UN CRPD in their reporting on the employment of persons with disabilities within their national contexts.
Section A of the General Comment focuses on Article 27 (1), on the right to work on an equal basis with others, including the right to gain a living by work freely chosen or accepted in an open, inclusive and accessible workplace. Section B clarifies the obligations under Article 27 (1) (a) on the prohibition of discrimination on the basis of disability. The Committee explains that international human rights practice identifies four main forms of discrimination that can take place in employment and recruitment, which can occur individually or simultaneously: direct discrimination, indirect discrimination, denial of reasonable accommodation, harassment, and discrimination by association.
This section also provides an outline and explanation of reasonable accommodation – when an employer provides adaptations to the workplace on an individual and tailored basis, that enables a person to do their job as effectively as possible. 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.” It further clarifies that “The duty to provide reasonable accommodation is from the moment that a person with a disability seeks to exercise their rights or requires access in non-accessible situations or environments”. The Committee provides examples of reasonable accommodation and specifically mentions that for a deaf person, this should include ensuring a sign language interpreter in meetings. Moreover, the Committee states that the individual’s preferred solution is the best unless it imposes undue burden, and undue burden means that “the required effort would be unduly costly, difficult, extensive, substantial, or disruptive, in light of the totality of the circumstances.”
Section J on provision of reasonable accommodation in the workplace (Article 27 (1 (i) UN CRPD) further clarifies aspects of reasonable accommodations. For instance, that “Reasonable accommodation is different from the duty to ensure accessibility.” Importantly, the Committee explains that States Parties should ensure that the provision of reasonable accommodation is “facilitated via measures and programs that provide technical and financial assistance to public and private employers.” This point is of particular significance to deaf persons, as there is a lack of resources and funding to provide qualified, professional sign language interpreters in the workplace – this point is crucial for deaf persons to engage in a fully accessible workplace.
Section C provides clarifications on the right to just and favourable conditions of work on an equal basis with others (Article 27 (1) (b)). For example, regarding pay the General Comment states 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.” Furthermore, in terms of working conditions, it is specified 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.”
The General Comment No.8 is of great importance for deaf persons as the right to work is a fundamental right. Indeed, meaningful work and employment are essential to a person’s economic security, physical and mental health, personal well-being and sense of identity.However, persons with disabilities, including deaf persons, continue to face barriers to gaining access to and exercising their right to work and employment in the open labour market, on an equal basis with others. For this reason, EUD jointly provided input to the consultation process, with the World Federation of the Deaf (WFD), that led to the development of this General Comment.
To read the full General Comment no.8, please follow this länk.