U.N. Convention on the Rights of Persons with Disabilities: Frequently Asked Questions

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U.N. Convention on the
Rights of Persons with Disabilities

Frequently Asked Questions

Article 26: Habilitation and Rehabilitation

QUESTION:
What is the right of persons with disabilities to habilitation and rehabilitation?

States Parties shall take effective and appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life.

QUESTION:
What are the obligations on State Parties to the Convention in relation to habilitation and rehabilitation?
  1. States Parties shall organize, strengthen and extend comprehensive habilitation and rehabilitation services and programmes particularly in the areas of health, employment, education and social services in a way that these services and programmes:
    • begin at the earliest possible stage, and are based on the multidisciplinary assessment of individual needs and strengths;
    • support participation and inclusion in the community and all aspects of society, are voluntary, and are available to persons with disabilities as close as possible to their own communities, including in rural areas.
  2. States Parties shall promote the development of initial and continuing training for professionals and staff working in habilitation and rehabilitation services.
  3. States Parties shall promote the availability, knowledge and use of assistive devices and technologies, designed for persons with disabilities, as they relate to habilitation and rehabilitation.

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Article 27: Work and Employment

QUESTION:
What is the right of persons with disabilities to work and employment?

States Parties recognize the right of persons with disabilities to work on an equal basis with others. This recognition includes the right for persons with disabilities to earn a living through work that is freely chosen or accepted in a labour market and in a work environment that is open, inclusive and accessible. The CRPD affects work opportunities for men and women, including those who were working when they acquired their disability, in both formal and self-employment. The protection relates to their ability to earn a living through requiring equal opportunity, equal treatment and non-discrimination in all aspects of job acquisition, job retention, access to training, trade union membership and promotion rights.

QUESTION:
What international instruments recognize this right?1

[Note: All the following references to instruments on right to work and employment are based on information contained in The right to decent work of persons with disabilities, by Arthur O'Reilly; Skills and Employment Office; International Labour Office; Geneva; 2007].

Over the last 60 + years, there have been several international instruments that recognized the rights of persons with disabilities to work. Not many years after the Treaty of Versailles in 1919 established the International Labour Organization (ILO), the organization was already pioneering legislation related to the vocational rehabilitation of disabled workers. The Workmen's Compensation (Minimum Scale) Recommendation , 1925 (No. 22) set principles that should be taken into account in determining compensation for industrial accidents. It also recommended that "the vocational re-education of injured workmen should be provided by such means as the national laws or regulations deem most suitable" and it urged governments to promote institutions that would provide such "re-education."

With specific reference to the concept of "right to work" one of the earliest international instruments to acknowledge the right to work of persons with disabilities was the Recommendation in 1944 by the International Labour Organization (ILO) that concerned how individuals should be accommodated in the post World War II era. The ILO's Employment Transition from War to Peace Recommendation 1944 (No 71) stated that: "persons with disabilities should, whenever possible, be trained with other workers, under the same conditions and the same pay, and called for equality of employment opportunity for disabled workers and fort affirmative action to promote the employment of workers with serious disabilities." Article 23 of the United Nations Universal Declaration of Human Rights, adopted by the General Assembly on 10 December 1948, stated: "Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment. Everyone, without discrimination, has the right to equal pay for equal work. Everyone who works has a right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. Everyone has the right to form and join trade unions for the protection of his interests."

Several ILO Recommendations that dealt with vocational rehabilitation were highly significant with regard to the right to work of persons with disabilities. The first was adopted in 1955 – the Vocational Rehabilitation (Disabled) Recommendation, 1955 (No. 99) served as a basis for national laws and practices concerning vocational guidance, training and placement of persons with disabilities and built on earlier provisions concerning equality of opportunity and equal pay for equal work.

The International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted by the UN General Assembly on 16 December, 1966 (resolution 2200A ((xxi)) was drafted in close cooperation with the ILO and reiterates all of the earlier provisions but in a binding treaty form. The Council of Europe’s European Social Charter, as revised in 1966, recognizes the right of everyone to have the opportunity to earn (a) living in an occupation freely entered upon and that all workers have the right to just conditions of work. The Charter specifically acknowledges that persons with disabilities have the right to independence, social integration and participation in community life.

The UN General Assembly Declaration on the Rights of Mentally Retarded Persons (resolution 2856 of 20 December1971) affirmed their right to perform productive work or to engage in any other meaningful occupation to the fullest extent of their capabilities.

A European Union (EU) Directive, adopted at the end of 2000, prohibits direct and indirect discrimination in the field of employment for a number of reasons, including disability. The Directive applies to many issues including: selection criteria and recruitment conditions; vocational guidance; vocational training; employment and working conditions including pay; and that employers should take appropriate measures to ensure that reasonable accommodations are provided so that a person with a disability has access to or can participate in or advance in employment or receive training unless such measures would impose a "disproportionate burden" on the employer.

Adopted in 2001, the ILO Code of Practice on Managing Disability in the Workplace provides practical guidance to employers to implement the types of measures contained in the international instruments. The Code is also a valuable tool to governments in helping them craft the necessary legal framework as well as to workers' representatives whose goal is to protect workers' interests.

QUESTION:
In addition to the Convention on the Rights of Persons with Disabilities, what other conventions are relevant?

In 1983, the ILO adopted the landmark Convention concerning the Vocatonal Rehabilitation and Employment of Disabled Persons (No. 159) that set new a international labour standard concerning persons with disabilities. It provided the fundamental principles that should be the basis for all vocational rehabilitation and employment policies including: equal opportunity and treatment; affirmative action measures that should not be regarded as discriminatory against other workers; integration of persons with disabilities into mainstream work-related programmes and services; services for those in rural or remote areas; training of qualified staff; and the need to consult employers' and workers' organizations as well as representative organizations of and for persons with disabilities. Recommendations No. 168 is the accompanying document that details the measures to be taken including: "the making of reasonable adaptations to work places, job design, tools, machinery and work organization" and the steps that should be taken to ensure that the consultative processes mentioned in the Convention are effective.

While Convention No. 159 was the seminal instrument concerning international standards in this area, there were in fact, as mentioned many predecessors dating back to the period following World War I. As indicated above, the ILO in particular, has had a long history of advocating for the rights of disabled workers to access vocational rehabilitation and employment opportunities. Among the early Conventions, were:

In 1946, the Medical Examination of Young Persons (Industry) Convention (No 77); Medical Examination of Young Persons (Non-Industrial Occupations) Convention (No. 78) and the accompanying Recommendations all concerning the medical examination of young people for fitness for employment called on the competent authorities to take appropriate measures concerning vocational guidance and vocational rehabilitation of young persons with disabilities.

In 1948,The ILO's Employment Service Convention (No. 88) called for special measures to meet the needs of workers with disabilities and included the recommendation that, when referring workers to employment, the employment services themselves should not discriminate against applicants on grounds of race, color, sex or belief.

In 1952, The ILO Social Security (Minimum Standards) Convention (No.102) called on governmental departments that administer medical care to to cooperate with the general vocational rehabilitation services to return disabled workers to suitable work (Art. 35).

As mentioned above, until the adoption of Convention 159, the ILO Vocational Rehabilitation (Disabled) Recommendation (No. 99) served as the basis for all national legislation and practice concerning vocational guidance, training and placement of people with disabilities.

The ILO Discrimination (Employment and Occupation) Convention 1958 (No 111) and its accompanying Recommendation describe non-discrimination policies in promoting equal opportunity and treatment in employment. However, disability was not specifically included in Convention 111 although it does provide for "special measures" in the case of disabled people. "Any Member may, after consultation, with representative employers' and workers' organizations, where such exist, determine that other special measures designed to meet the particular requirements of persons, who, for reasons such as sex, age, disablement, family responsibilities, or social or cultural status, are generally recognized to require special protection or assistance, shall not be deemed to be discrimination." (Art. 5.2).

In 1975, the ILO's Human Resources Development Convention (No. 142) asked member States "to develop and implement open, flexible and complementary systems of general, technical and vocational education; educational and vocational guidance; and vocational training, including continuing employment information." The accompanying Human Resources Development Recommendation (No. 150) spelled out the details on how to effect the provisions of this Convention.

QUESTION:
What is the content of the CRPD on work and employment?

Article 27 covers all aspects of work and employment that deal with the right to work on an equal basis with others and the right to the opportunity to gain a living through work that is freely chosen and accepted in a labour market and a work environment that is open, inclusive and accessible to persons with disabilities. Therefore, the content includes all issues related to the conditions of employment such as: recruitment; hiring; employment; continuance of employment; access to all types of training; access to vocational rehabilitation; career advancement; equal pay for equal work; labour and trade union rights; protection from harassment; redress of grievances; and safe and healthy working conditions.

QUESTION:
What principles are applied to work and employment?

The major principles are non-discrimination and equality of opportunity and treatment for persons with disabilities (including those who acquire a disability while employed) with non-disabled workers in all matters relating to work and employment.

QUESTION:
How is a worker with a disability defined in the CRPD?

The Convention defines persons with disabilities as "all persons with disabilities including those with long-term physical, mental, intellectual or sensory impairments which, in interaction with various attitudinal and environmental barriers, hinder their full and effective participation in society on an equal basis with others." The Convention also pertains to those workers who acquire a disability during the course of employment.

QUESTION:
What are the specific rights of persons with disabilities in relation to work and employment in the CRPD?

  • The right to work on an equal basis with others;
  • The right 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. By implication, other rights included in different Articles such as the right to Accessibility (Article 9) and the right to Equality and non-discrimination (Article 5) are understood to apply also to work and employment issues.

QUESTION:
What are the obligations on States Parties to the CRPD in relation to work and employment?

While all of the provisions of the Convention concerning Work and Employment are stated only as obligations on States Parties, there are some that should probably be considered as more cross-cutting, i.e. while they are not specific obligations on employers or trade unions, they would likely need the cooperation of the social partners to be effective. For example, while the obligation is specifically on States Parties to ensure that a worker with a disability is provided with a reasonable accommodation, or safe and healthy working conditions, or access to professional rehabilitation, such provisions would also need the cooperation of the employer and, quite possibly, that of trade unions in order to be successful.

States Parties shall safeguard and promote the realization of the right to work by taking the appropriate steps, including through legislation to:

  • Prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment and
  • Protect the rights of persons with disabilities as specified in the roles mentioned for employers and trade unions in the following sections.

It should be noted that many obligations of Article 27 are repeated as obligations under one or more of the responsibilities of the various social partners.

Obligations on States Parties as Employers:

  • Employ persons with disabilities in the public sector;
  • 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;

and

  • States Parties shall ensure that persons with disabilities are not held in slavery or in servitude, and are protected, on an equal basis with others, from forced or compulsory labour.

Obligations on States Parties as law and policy-makers:

  • Prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring, and employment career advancement and safe and healthy working conditions;
  • Protect the rights of persons with disabilities, on an equal basis with others to just and favorable conditions of work, including equal opportunities and equal remuneration for work of equal value, safe and healthy working conditions, including protection from harassment, and the redress of grievances;
  • Ensure that persons with disabilities are able to exercise their labour and trade union rights on an equal basis with others;
  • Enable persons with disabilities to have effective access to general technical and vocational guidance programmes, placement services and vocational and continuing training;
  • Promote opportunities for self-employment, entrepreneurship, the development of cooperatives and starting one's own business;
  • Promote employment opportunities and career advancement for persons with disabilities in the labour market, as well as assistance in finding, obtaining, maintaining and returning to employment;
  • Ensure that reasonable accommodation is provided to persons with disabilities in the workplace;
  • Promote the acquisition by persons with disabilities of work experience in the open labour market;
  • Promote vocational and professional rehabilitation, job retention and return-to- work programmes for persons with disabilities;

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QUESTION:
What is the important role of employers and employers' organizations in relation to the Convention's provisions on work and employment?

As mentioned, the obligations of the Convention are only on States Parties but with regard to the provisions of Article 27, employers are an essential part of any successful strategies to improve work and employment outcomes for people with disabilities.

  • Prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring, and employment career advancement and safe and healthy working conditions;
  • Protect the rights of persons with disabilities, on an equal basis with others to just and favorable conditions of work, including equal opportunities and equal remuneration for work of equal value, safe and healthy working conditions, including protection from harassment, and the redress of grievances;
  • Ensure that persons with disabilities are able to exercise their labour and trade union rights on an equal basis with others;
  • Enable persons with disabilities to have effective access to general technical and vocational guidance programmes, placement services and vocational and continuing training;
  • Ensure that reasonable accommodation is provided to persons with disabilities in the workplace;
  • Promote the acquisition by persons with disabilities of work experience in the open labour market;
  • Promote vocational and professional rehabilitation, job retention and return-to-work programmes for persons with disabilities.

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Again, while the obligations of the CRPD are solely on States Parties, trade unions have a hugely important role to play in advancing and promoting successful employment and return to work outcomes for workers with disabilities.

QUESTION:
What is the important role of trade unions in relation to the provisions of work and employment?

  • Ensure that persons with disabilities are able to exercise their labour and trade union rights on an equal basis with others;
  • Prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring, and employment career advancement and safe and healthy working conditions;
  • Protect the rights of persons with disabilities, on an equal basis with others to just and favorable conditions of work, including equal opportunities and equal remuneration for work of equal value, safe and healthy working conditions, including protection from harassment, and the redress of grievances;
  • Enable persons with disabilities to have effective access to general technical and vocational guidance programmes, placement services and vocational and continuing training;
  • Promote the acquisition by persons with disabilities of work experience in the open labour market;
  • Promote vocational and professional rehabilitation, job retention and return-to-work programmes for persons with disabilities.
  • Promote employment opportunities and career advancement for persons with disabilities in the labour market, as well as assistance in finding, obtaining, maintaining and returning to employment;
  • Ensure that reasonable accommodation is provided to persons with disabilities in the workplace;

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QUESTION:
What is the important role of disabled persons' organizations in relation to the provisions on work and employment?

  • As articulated in Article 33 concerning the National implementation and monitoring process, civil society, in particular persons with disabilities and their representative organizations, shall be involved and participate fully in the monitoring process.

QUESTION:
Based on obligations on States Parties and the understanding about the important roles to be carried out by the other social partners concerning Article 27, what should be the suggested roles of service providers and non-governmental organizations in relation to the provisions on work and employment?

Although not specifically addressed in the Convention, it can be understood that service providers and non-governmental organizations have a very pivotal role to play in encouraging people with disabilities to work or return to work. Therefore, service providers and non-governmental organizations should endeavour to adhere to all of the previously-mentioned provisions concerning non-discrimination and equality of treatment for persons with disabilities seeking work or employment opportunities. In the case of service providers, in particular, these provisions would apply to habilitation and rehabilitation services so that persons with disabilities can gain the skills necessary to obtain work or return- to-work after acquiring a disabling condition.

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Article 32: International Cooperation

QUESTION:
What are the obligations of States Parties concerning international cooperation?

States Parties recognize the importance of international cooperation and its promotion, in support of national efforts for the realization of the purpose and objectives of the present Convention and will:

  • Undertake appropriate and effective measures in this regard, between and among States and, as appropriate, in partnership with relevant international and regional organizations and civil society, in particular organizations of persons with disabilities. Such measures could include, inter alia:
    1. Ensuring that international cooperation, including international development programmes is inclusive of and accessible to persons with disabilities;
    2. Facilitating and supporting capacity-building, including through the exchange and sharing of information, experiences, training programme and best practices;
    3. Facilitating cooperation in research and access to scientific and technical knowledge;
    4. Providing, as appropriate, technical and economic assistance, including by facilitating access to and sharing of accessible and assistive technologies and through transfer of technologies.
  • The provisions of this article are without prejudice to the obligations of each States Party to fulfill its obligations under the present Convention.

The issue of obligations on States Parties that sign and ratify the Convention is interesting because it means that not only must they adhere to the provisions in their national policies, but also externally i.e. in all aspects of their international development work. Furthermore, the last statement means that States Parties still have the specified responsibilities in their development work, even if there is no technical cooperation agreement in place.

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