The Quota Act – UK Case study

The quota system is a mandatory policy that obliges employers to employ a certain percentage of persons with disabilities as part their workforce. This quota system is not the only measure for employing persons with disabilities. This makes it more difficult to judge the effectiveness of enforcing such a system because each country presents different policies and quota systems.

Germany, Italy, Austria, Poland, and France had already adopted a quota system, by the end of 1923. This quota system obliged employers to hire war veterans . Many European countries introduced quota systems after the Second World War. Initially, they were applied only to disabled veterans, but were soon extended to cover all disabled civilians. The level of mandatory quotas reflects the different reasons why a country introduces such quotas. Some countries do so because of human rights concerns, choosing to support persons with disability rather than prioritising the country’s economic needs. Another aspect can be the prevalence of disability within the country. Conversely, there are also countries that adjust the quota depending on the proportionate unemployment rates of disabled people versus non-disabled. Another contributing element is the type of employers that are covered in different countries. In some countries, the quota system only applies to the public sector, whereas in other countries, it is the private sector that is covered, and some countries cover both. Moreover, the quota systems only apply to employers of a certain size. This can range from a minimum of companies with twenty employees to as any as fifty-plus.

The last aspect of this comparison focuses on the incentives and sanctions that each country offers/imposes when employers hire, or do not hire, persons with disabilities. The sanctions are usually fines, payments or contributions that employers must pay if they do not abide by the quota law. The incentives that are given to employers if they reach the stipulated quota, can be both financial and in the form of other support.

The United Kingdom

The case study that follows describes the United Kingdom’s experience of the disability quota system, which is similar to the Maltese legislation framework. However, this British quota system was abandoned with the introduction of the Disability Discrimination Act 1995, which itself was later replaced by the Equality Act of 2010. The United Kingdom is the only country to have abolished such a quota system.

Unlike many countries in the European Union, the United Kingdom does not currently have any specific employment quotas, supported by sanctions, to encourage employers to hire persons with disabilities. However, this was not always the case. A quota system was introduced into the UK, after the Second World War as the Disabled Persons’ (Employment) Act of 1944. This Act created a system the obliged disabled persons to be registered and that placed an obligation on employers to hire a quota of persons with disabilities. In the UK, disability is defined as having a physical or mental impairment and where the impairment has a substantial and long-term, adverse effect on an individual’s ability to carry out normal day-to-day activities (Equality Act, 2010). Almost 20 percent of the UK’s population has some form of disability (UK Office for Disability, 2014). However, when we compare this with Malta’s disabled population, the definition of disability, in Malta, is contained in the Equal Opportunities (Persons with Disability) Act, Chapter 413 (2000). Therein, it is defined as a long-term physical, mental, intellectual, or sensory impairment, which in interaction with various barriers may hinder one’s full and effective participation in society on an equal basis with others. It is estimated that 7.2 percent of the population in Malta has some form of disability (NSO, 2014). In the United Kingdom, the Disabled Persons (Employment) Act of 1944, was launched after a report presented by the government. The first part of the act focused on the impairment of the disabled person. The definition given was that of “a person who, because injury, disease, or congenital deformity, is substantially handicapped in obtaining or keeping employment, or in undertaking work on his own account, of a kind which apart from that injury, disease or deformity would be suited to his age, experience and qualifications”. This act obliged employers in the private sector, who employed twenty or more staff to have a 3 percent quota of their workforce as registered disabled people. This did not apply to the public employment sector; however, this sector was still being obliged to support such persons into employment.

The registration of a disabled person was an individual’s choice and by doing so the person gained the advantages of being part of the quota. A section of the law also required employers to keep a record of this quota. Employers were obliged to offer prospective disabled applicants’ preferential treatment during the application process, if they had fewer disabled employees than the quota required, at that time. The employment of persons with disabilities was only released by the office of Employment Services. If an employer was caught employing a person who was not registered, this was considered to constitute an offence and they were liable to a fine. The legislation was not flexible as concerned the nature and size of the companies. Unfortunately, the law was never enforced across the country.

Only six prosecutions were brought, for breaching this law, between 1949 and 1975 and they resulted in five convictions and negligible fines. Thornton and Lunt (1995), claimed that it was also an offence to fail to keep records and the only one case that was brought to court, in 1948, was dismissed.

Up until 1994, when the quota system came to an end, the number of registered disabled persons fell constantly. The year, 1950, saw the peak in the number of registered persons with disabilities, at 936,196. This fell to 355,591 in 1990, and in 1994, the number stood at 374,182. It is very clear that a system that was supposed to help and support persons with disabilities into the workplace was not really offering any advantages; therefore, disabled people did not bother to register. This resulted into a situation where supply and demand did not match, and companies were unable to meet the 3 percent quota. This decline was also the result of the way persons with disability viewed the quota system; they thought it a waste of time.

As time passed, fewer employers knew, or had any understanding, about the quota system. From a government survey held in 1990, one quarter of the employers had not heard about the quota system. This was mainly because of the lack of any enforcement of the law, which resulted in a steady decline in the number of employers who fulfilled their quota; only one in five employers managed to do so.

The United Kingdom abandoned the registration of persons with disabilities, along with employment quotas, in 1994. This was achieved through campaigning activities and the involvement of the Disabled Peoples Organisations (DPOs). Despite this, the number of unemployed persons with disabilities is still high in the United Kingdom. It should not be understood that the removal of the disability quota resolved the problem, but rather that provided a different context for understanding the requirements for integrating persons with disabilities into the labour market.

The UK’s experience was by no means perfect, but it did change the way persons with disabilities were able to enter the labour market. What we can learn from the case above, is how such changes in the United Kingdom could influence a disability quota within the Maltese context.

Two ways to safeguard the rights of persons with disabilities are the implementation, and monitoring, of laws and policies. Being the smallest state in the European Union, Malta still needs to ensure that persons with disabilities are given the right to access employment. Although this has been done during the last few years by adopting and updating existing policies, the rate of employed persons with disabilities is still low. According to Camilleri and Callus (2001), disability was considered a taboo subject before second world war and most of persons with disabilities were kept at home, in Malta. It was only between 1945 – 1973 that radical changes began to happen for people with disabilities. During that time, residential homes began to be constricted expressly to house persons with disabilities. Moreover, special schools began to cater for children with disabilities. The birth of non-governmental organisations, to support this vulnerable group, also occurred.

In Malta, four important legislations support persons with disabilities, as concerns employment:

1. The Persons with Disabilities Employment Act, Chapter 210 (The Quota Act)

2. The Employment and Industrial Relations Act, Chapter 452

3. The Equal Opportunities (Persons with Disability) act, Chapter 413

4. Employment and Training Services Act, Chapter 343

THE PERSONS WITH DISABILITIES EMPLOYMENT ACT, CHAPTER 210 (THE QUOTA ACT)

The first effort to enforce the principles of equal opportunities in work for persons with disabilities were in 1969, when the Persons with Disability (Employment) Act (1969), was introduced. This legislation also included the creation of a register for persons with disabilities, Registered Disabled Persons (RDPs), and the quota system of 2 percent for companies that employed twenty or more employees. For a disabled person to be part of the quota he/she had to be listed on the register. With the creation of the Quota Act, reserved jobs were created for persons with disabilities. The public employment service provider in Malta, Jobsplus, holds this register. According to Article 20 of this act, employers are also required to keep a record of disabled employees in their workforce, together with other information, compliant with this Act.

Even though the Quota Act has existed for forty-five years, now, persons with disabilities still struggle to enter the open labour market. During these years, the bulk of employed persons with disabilities were employed within the public sector. The Act had little effect with regards to the employment of persons with disabilities in the private sector. The main reason for this gap was that the act was not enforced until the national budget of 2015 (Minister of Finance, 2014).

THE EMPLOYMENT AND INDUSTRIAL RELATIONS ACT, CHAPTER 452

The Employment and Industrial Relations’ Act, Chapter 452 (2002), of the Laws of Malta, does not provide a clear-cut definition of who should be considered as a “person with disability”. Despite this, the Act clearly sets out that any form of discrimination against persons with disability is prohibited. This legislation is now in line with the European Union Framework Directive for Equal Treatment in Employment and Occupation, through the enforcement of the Equal Treatment in Employment Regulations that came in force in 2004. The main purpose of this set of regulations is:

‘… to put into effect the principle of equal treatment in relation to employment by laying down minimum requirements to combat discriminatory treatment on the grounds of religion or religious belief, disability, age, sexual orientation, and racial or ethnic origin…’

These regulations were also extended to employees in the public sector, through the Extension of Applicability to Service of the Government (Equal Treatment in Employment) Regulations.

THE EQUAL OPPORTUNITIES (PERSONS WITH DISABILITY) ACT, CHAPTER 413

The Equal Opportunities (Persons with Disability) Act, Chapter 413 (2000), of the Laws of Malta, prevents any form of employment discrimination against a person with disability regarding:

• Procedures relative to applications for employment;

• The hiring, promotion or dismissal of employees;

• Employees’ compensation;

• Job training; and

• Any other terms, conditions and privileges related to the employment of persons with disability.

This act also obliges employers to effect reasonable accommodation to the working conditions of persons with disabilities. The act allows that such modifications are based on the overall financial resources of the business as well as the effect on expenses and resources and the overall size of the business.

EMPLOYMENT AND TRAINING SERVICES ACT, Chapter 343

The Employment and Training Services Act Chapter 343 (1990), gives the National Employment Authority the power to make rules, which offer allowances for special consideration in cases where the job seeker is a person with disability who requires special assistance. Such services are also open to any job seeker with dependents who are disabled.

In recent times, there has been an extensive effort made to fight any form of discrimination against persons with disabilities’ entering the open labour market. This effort has been carried out on an International, European Level and national Level. The main objective of human rights efforts is to guarantee basic freedom, and to permit the development of human values, such as equal opportunities, dignity and autonomy. The result of this collective effort is a number of anti-discriminations legislations and plans. There are several instruments, which, while not specifically directed at persons with disabilities, still offer protection to this group. My next contributions in these blogs will look at and describe legislation and action plans from various bodies including the United Nations, European entities and stakeholders in Malta.

United Nations legislations

The United Nations (UN) was at the forefront in creating legal instruments that promote and protect the rights of all persons. These rights also apply to persons with disabilities. As soon as the UN was created, persons with disabilities began to assert their rights. In the past fifty years, persons with disabilities have also started to voice their concerns and have confirmed their confidence in their ability to lead independent lives. It is a major role of the UN to bring states together as concerns issues about persons with disability. Furthermore, the UN also supports national legislations and in-country policy makers for the benefit of these people (UN, 2017).

Soon after the birth of the United Nation in 1945, the Universal Declaration on Human Rights (UDHR) came into effect, in December 1948. Eleanor Roosevelt, wife of the US president, Franklin D. Roosevelt, and chair of the United Nations Commission wrote this declaration. It consists of thirty Articles. This declaration does not explicitly include or refer to disability. During the years following its inception, several conventions were published, where the category, disability, was traditionally included under the generalised heading of ‘other statuses’. However, the Commission of Human Rights rectified this situation, stating:

“Recalling that all persons with disabilities have the right to protection against discrimination and to full and equal enjoyment of their human rights, as laid down, inter alia, in the provisions of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women and the 1983 Convention concerning vocational rehabilitation and employment (ILO, 2002).”

Despite the UDHR, people with disabilities still experienced exclusion and oppression, in some countries, and face many challenges. This led to the creation of The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).

UNCRPD

Between 2002 and 2006, the UNCRPD was negotiated and drafted. Since that time, the convention has passed through the processes of ratification, implementation and monitoring. On the 13th of December 2006, the convention was formally adopted, marking a significant shift in the relationship between the actual rights of persons with disabilities and international legal instruments.

As of February 2016, 161 out of the 193 United Nations’ Member States (over 80%) had ratified the UNCRPD. The UNCRPD is one of nine core international human rights’ treaties. It includes thirty-three core articles covering all areas of life.

Article 27 of the convention recognises the right of persons with disabilities to work (paid) on an equal basis with others. This also applies to persons who acquire their disability during the course of their employment. The article also contains a list of obligations that states must fulfil in order to protect and enhance the employment rights of persons with disabilities. One such obligation is the promotion of persons with disabilities in the private sector, through policies and affirmative measures. The Article also stresses that compulsory (enforced) labour of persons with disabilities, such as slavery or servitude, is in violation of the UNCRPD (Lawson 2007).

Malta signed the UN Convention on the Rights of Persons with Disability in March 2007, together with the Optional Protocol. These were both ratified in October 2012 and came into effect on the 9th November 2012.

It is estimated that there are about 70,000 social enterprise in the United Kingdom. This is quite an increase since 2006 and 2004 when 55,000 and 15,000 social enterprises were identified, respectively. (Social Enterprise UK, 2013; Harding, 2006). Just over half (52 per cent) of social enterprises surveyed in 2013 actively employ people who are disadvantaged in the labour market including disabled people (Social Enterprise UK, 2013). Till today, Malta has no legally recognised form of social enterprise, however several Voluntary Organisations (VO) and cooperatives can be considered as a social enterprise. There are two main national legal documents at a national level, which support the existence of social enterprises. The first legal document is the Voluntary Organisations Act of 2007 that created an authority responsible for the registration and monitoring of Vos. The second legal document is Cooperative Societies Act of 2001. In 2015, there was the launch of the first Social Enterprise Act White Paper. This launch was considered a milestone towards creating a White Paper, including specific legal framework for social enterprises.  Notwithstanding this achievement, the White Paper is still to become law. This first attempt acknowledges the role of the European Commission (EC) as an external body to develop and support this White Paper in a legal framework. However, the EU also suggest that there is the need to further develop and sustain the sector beyond what is already possible through the existing legal frameworks that regulate VOs and Cooperatives.

Sheltered employment is by far one of the most disputed method of employment when open employment is not an option for several reason for an individual to enter the labour market. The ILO has recommended in the past that “appropriate government support for the establishment of various types of sheltered employment for disabled persons for whom access to open employment is not practicable” (ILO Recommendation No. 168, para 11(b)). According to Samoy and Waterplas (1997) whilst conducting a survey about sheltered employment found that even the concept of sheltered employment does not have the same meaning for all people. According to the report by the States Parties to the Committee on the Rights of Persons with Disabilities (Committee on the Rights of Persons with Disabilities, n.d), many countries continue to operate some form of sheltered employment system. Most of these countries are OECD countries that set up sheltered workshops some years ago way before the policy shift to inclusion started to emerge. Low transition, lack of employment contracts and poor pay are some of the common criticisms of sheltered employment. Those who support the idea of sheltered workshops see their responsibility more in terms of care and social care rather than employment as an economic return.

Samoy, E. , & Waterplas, L. (1997). Sheltered employment in five member states of the Council of Europe: Austria, Finland, Norway, Sweden and Switzerland. Strasbourg: Council of Europe

Supported employment originated in the United States. The main aim was an alternative to traditional rehabilitation programmes for persons with severe disabilities. This type of employment is a versatile model that can be provided in a variety of ways. Parmenter (2011) states that such variety of supported employment can be individual placement, Hybrid, and mobile work crews. According to (Wehman et al., 1997), The individual placement option would appear to be the dominant one in the United States. In 2012, 83 % of supported employment participants were in individual supported employment positions compared to 77 % in 1995. Hybrid consist of a group of individuals, usually between three to eight, who work in a special training group within a host company. Not all members of the group may move into the company’s regular workforce but for some this would be the ideal opportunity to move into individual placement. On the other hand, a mobile work would consist of a similar sized group, with one or more job coaches, which travels through a community offering specialized contract services, such as gardening or grounds-keeping. Notwithstanding all this, there is no best model of Supported Employment. This is because Supported Employment must be flexible, variable, accommodating, and require a collaborative approach.

This model presents the concept that anyone can be employed if they want paid employment whilst sufficient support is provided. The European Union of Supported Employment has produced position papers and guides to the supported employment model. One of the best guidelines is the European Union of Supported Employment Toolkit.

Click to access EUSE-Toolkit-2010.pdf

Parmenter, Trevor R. (2011). What is Intellectual Disability? How is it Assessed and Classified? International Journal of Disability, Development and Education, 58:3, 303-319

Wehman, P., Revell, G., & Kregel, J. (1997). Supported employment research: expanding competitive employment opportunities for persons with significant disabilities. Retrieved from http://files.eric.ed.gov/fulltext/ED408777.pdf#page=10

My participation in 2018 – Representatives from the Australian, British, Fijian and Maltese missions.

The Commonwealth, in partnership with the Permanent Missions of Australia, Malta, Sierra Leone and Vanuatu, held a side event on disability inclusion in the workplace on the margins of the 37th session of the United Nations Human Rights Council in Geneva. Sierra Leone’s Ambassador, Yvette Stevens, chaired the panel and led an informative discussion for the ‘Inclusion Matters: Access and Empowerment’ event.

“Disabled Persons should not be left behind in the implementation of the 2030 Sustainable Development Agenda. Article 27 of the CRPD, and SDGs address the employment of the disabled and should be the basis for action to ensure access to decent work by the disabled. All States need to intensify efforts in this regard, drawing from the existing good practices” stated Ambassador Stevens.

Fellow panellists included the Permanent Mission of Vanuatu’s Chargé d’affaires, Noah Patrick Kouback, Tonio Axisa from Malta’s Commission for the Rights of Persons with Disabilities and David Walji from the Commonwealth’s Communications Division.

The side event created space for discussion by Commonwealth member states to reflect and identify challenges and best practice in the implementation of Article 27 (Work and employment) of the Convention on the Rights of Persons with Disabilities (CRPD).

This included greater understanding on the challenges, opportunities and best practice in the implementation of the CRPD with specific focus on the implementation of Article 27.

Representatives from the Australian, British, Fijian and Maltese missions took part in the discussion, which highlighted the benefits and drawbacks of technology, the role of education in and around the workplace in regard to persons with disabilities and the importance of not regarding disability as limiting or something to overcome.

For David Walji, it is important not to regard disability as limiting: “When I became disabled, I had to contest the idea, both to myself and others, that people with disabilities are less productive. I did not want to be stigmatised as less capable to my employer and colleagues”.

Currently, 47 out of 53 members of the Commonwealth are parties to the Convention. The Secretariat’s Human Rights Unit supports member states to implement Article 27, including technical assistance and capacity development.

Justin Pettit from the Commonwealth Secretariat’s Human Rights Unit emphasised that the Commonwealth Charter makes reference to the commitment found in Article 27 of the CRPD to ‘equality and respect for the protection and promotion of civil, political, economic, social and cultural rights, including the right to development, for all without discrimination on any grounds as the foundations of peaceful, just and stable societies.’

In April 2018, the UK will host the Commonwealth Heads of Government Meeting (CHOGM) under the theme: ‘Towards a Common Future’ and is focused on building on the strengths of the Commonwealth to ensure this unique organisation is responsive to global challenges and delivers a more prosperous, secure, sustainable and fair future for all its citizens, particularly its young people.

The inclusion of people with disabilities is also echoed in a number of the Sustainable Development Goals, including SDG 4, 8, 10, 11 and 17. These Goals reference persons with disabilities in relation to education, growth, employment, inequality, accessibility of human settlements and data collection.

Tonio Axisa described that, “This meeting proved that such an agenda not only opens further scope of discussion on such topics but, by sharing best practices, can truly support other countries in this matter.”

There is a consensus among Commonwealth governments that more needs to be done to make workplaces more inclusive for persons with disabilities across the 53 member states.  At CHOGM next month, leaders will discuss possible ways to ensure no one is left behind, especially persons with disabilities.

Source: https://thecommonwealth.org/media/news/inclusive-work-environment-must-factor-people-disabilities

The mission of the Ronald McDonald House Charities Malta’s Learning Centre is to safeguard the well-being of children or young people in need of educational support.

My contribution regarding workplace disability quotas work in Malta during an interview by Daiva Repeckaite; 20th May 2020

‘Disability and employment expert Tonio Axisa, who is working on a PhD on the subject at De Montfort University in the UK, notes that disparities between the different disability registers used in Malta has been an obstacle in tracing how many people actually benefit from this scheme – and how many should. His research has shown that many employers feel that they lack clear guidelines on what counts as disability; is dyslexia, for example, on the list? “There are three registers: the CRPD [Commission for the Rights of People with Disability], which includes children and seniors, the social security register (if a person is eligible for social benefits and disability allowance), and Jobsplus (for those aged 16-63 years old who are actively ‘looking for work). The numbers [between the three databases] don’t match. The biggest challenge has been that in order to enter each one of the registers you have to go in front of a board for an assessment. But the assessments are not the same,” the researcher explains.‘

FULL ARTICLE: https://www.equaltimes.org/making-workplace-disability-quotas?lang=en#.YBRn8uhKg2z