A/HRC/22/25
integral disability legislation, human rights legislation, anti-discrimination legislation and
employment legislation. Submissions to this study indicated that an increasing number of
countries have such laws in place in the form of constitutional provisions or antidiscrimination legislation prohibiting discrimination against persons with disabilities.
Labour codes containing specific provisions on the right of persons with disabilities to work
or disability laws that include provisions on work and employment were also mentioned in
the submissions received. Contract compliance laws are often in place alongside primary
legislation, requiring companies to demonstrate that they are complying with the provisions
of the law and acting as an incentive to employers to implement the legal provisions.
A.
The right to access employment in the open labour market
14.
The Convention on the Rights of Persons with Disabilities establishes the right of
persons with disabilities to enjoy equality of opportunity and treatment in respect of access
to, retention of and advancement in employment in the open labour market which, wherever
possible, corresponds to their own choice. ILO Vocational Rehabilitation recommendation
No. 99 of 1955 and the Standard Rules on the Equalization of Opportunities for Persons
with Disabilities (1993) already promoted access to the open labour market by persons with
disabilities. The ILO Vocational Rehabilitation and Employment (Disabled Persons)
Convention (No. 159) of 1983 defined the concept for the first time in an international,
legally binding instrument.
15.
While the primary focus of employment strategies for persons with disabilities
should be on providing them with equal opportunities for productive and gainful
employment in the open labour market, so called “alternative” employment has been, for
many, the only real option available. Often, such initiatives take the form of supported
employment or sheltered employment.
16.
Sheltered employment generally takes place in a separate workshop setting and may
entail lower work output requirements than that expected in the open labour market and
working arrangements are frequently not covered by labour laws. It is imperative that
sheltered employment be regarded as a transitional arrangement as people move to more
open forms of employment that enable them to work alongside persons without disabilities,
but also one that provides ongoing support to those who, for a variety of reasons, may be
unable to assume employment in the open labour market.
17.
Supported employment usually involves on-the-job training in a regular workplace,
whereby the worker learns on the job alongside a job coach who provides follow-up
support to both the worker and the employer once the training is complete and if an
employment contract or trial period is offered. In addition to individual supported jobs in
the open labour market, supported employment may take the form of small businesses,
mobile work crews or enclaves in a company, in the case of individuals requiring a higher
level of support.7 When it takes place in regular workplaces, supported employment is a
preferable alternative to sheltered work and has been found to be more effective in leading
to jobs.
18.
During the negotiations of the Convention, one of the main topics of debate
regarding article 27 was the fear of creating a so-called “loop-hole” for the interpretation of
comprehensive inclusion in working life in the form of sheltered workshops. Indeed, the
right of everyone to the opportunity to gain a living by work which he or she freely chooses
7
6
O‟Reilly, Arthur, The right to decent work of persons with disabilities (Geneva, ILO, 2007).
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