WRITTEN QUESTION E-2960/01

by Samuli Pohjamo (ELDR) and Mikko Pesälä (ELDR) to the Commission

(25 October 2001)

Subject: Promoting the position of people with disabilities

Article 1 of Council Directive 2000/78/EC(1) of 27 November 2000 states that The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation . Article 5 of that directive (Reasonable accommodation for disabled persons) also states that In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall 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. The implementation of this directive is of vital importance because people with disabilities still suffer from negative attitudes both at work and in society as a whole. On 17 June 1999 the Council took up a position on this matter when it adopted a resolution(2) in which it urged the Member States to place particular emphasis on the promotion of employment opportunities for people with disabilities.

1. How will the implementation of this directive be ensured? In this connection we are interested particularly in eliminating discrimination against people with disabilities as regards employment and occupation and in appropriate measures to apply the above-mentioned Article 5.

2. What exactly is meant in Article 5 by unless such measures would impose a disproportionate burden on the employer? If an employer has a unilateral right to determine what imposes a disproportionate burden on him, how is it possible to prevent unjustified discrimination against people with disabilities on these grounds, for example in a recruitment situation?

3. What are the measures, referred to in Article 26 of the Charter of Fundamental Rights of the EU, designed to ensure the independence, social and occupational integration of disabled people and their participation in the life of the community? How have these measures been implemented thus far and is there room for improvement in their implementation?

4. Are any projects as described above, aimed at improving the position of disabled people, planned in the near future, and if so, of what kind are they?

(1) OJ L 303, 2.12.2000, p. 16.

(2) OJ C 186, 2.7.1999, p. 3.

Answer given by Mrs Diamantopoulou on behalf of the Commission

(12 December 2001)

1. According to Article 18 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, Member States shall adopt laws, regulations and administrative provisions necessary to comply with this Directive by 2 December 2003 at the latest. However, in order to take account of particular conditions, Member States may, if necessary, have an additional period of three years from 2 December 2003 onwards, to implement provisions of the Directive on age and disability discrimination.

The Commission has set up a working group of Member States' officials responsible for the implementation of the Directive. The group is primarily intended to facilitate the transposition of the Directive into national law by organising a forum for discussion, exchange of information and the coordination of work.

Transposition of the directive into national law will confer directly enforceable rights to protection from discrimination on grounds of disability among which features the right to redress before a court in case of unfair discrimination.

For many disabled people, a major barrier to equal opportunity, equal participation or equal performance at work may be some feature of the work situation which prevents people with disabilities from participating on an equal footing.

There can be no exhaustive list of the types of accommodation required to end discrimination against people with disabilities in employment. Each case will have to be considered in its own circumstances and on its own merits. Having said that, the twentieth recital to the directive gives some guidance by stating that appropriate measures should be provided, i.e. effective and practical measures to adapt the workplace to the disability. For example, adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources.

2. Article 5 of the Directive provides that if the employer can demonstrate that the proposed accommodation would cause a disproportionate burden on the operation of his/her business, a failure to provide accommodation is not discriminatory. The burden of proof should be upon the employer to demonstrate that a given adjustment would constitute a disproportionate burden, and people with disabilities are entitled to question such an adjustment. Recital 21 says that to determine whether measures in question give rise to a disproportionate burden, account should be taken in particular of the financial and other costs entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance. What will amount to a disproportionate burden will thus be a question of fact to be decided on the merits of the individual case.

3. Besides the above-mentioned measures aimed at tackling discrimination, the Community is implementing a number of measures designed to encourage the social and occupational integration of disabled people. The European Social Fund, which is the principal means by which the Community offers financial assistance to disabled people, is supporting a wide range of measures including work experience schemes, temporary sheltered employment and other intermediate labour-market steps, as well as self-employment and the development of cooperatives for the mentally and severely physically disabled.

Substantial support is also provided through the Community Initiative EQUAL, the aim of which is transitional cooperation to promote new means of combating all forms of discrimination and inequalities in connection with the labour market. In addition, a considerable number of projects targeting the needs of people with disabilities have also been supported through various Community research programmes and other general initiatives, such as Socrates, Leonardo da Vinci, Health Promotion, Daphne, PHARE, TACIS etc.

A number of initiatives have also been launched to improve access to premises, transport and new technologies. These are specifically listed in the Communication of 12 May 2000 entitled Towards a barrier-free Europe for people with disabilities(1).

4. The Community action programme to combat discrimination (2001-2006) (Council Decision 2000/750/EC of 27 November 2000)(2) provides for a range of measures intended to support and strengthen efforts by the Member States and the Community to draw up effective legislation and policies to tackle discrimination in the period up until 2006. These measures include activities aimed at making organisations representing disabled people, and disabled people themselves, better able to fight the discrimination to which they are subjected.

Similarly, in an effort to promote better understanding of disabilities and to help mobilise all parties involved at all levels, the Commission has proposed that 2003 be declared the European Year of People with Disabilities(3). In particular, the European Year seeks to lay the foundations for further sustainable progress by informing and educating people and paving the way for new legal and policy developments

(1) COM(2000) 284 final.

(2) OJ L 303, 2.12.2000.

(3) OJ C 240 E, 28.8.2001.