Lisa Waddington

Towards an Agenda for Disability Research in Europe: Learning from Disabled People’s Organisations

This paper addresses the challenges of building capacity for collaborative participatory research with disabled people’s organisations in European countries. The paper presents initial findings from the project ‘European Research Agendas for Disability Equality’ (EuRADE), which seeks to build the capacity of civil society organisations to participate in future research collaborations in partnership with academic institutions. The findings draw on survey data identifying the research capacity, needs and priorities of 68 organisations in 25 countries and focuses, in particular, on responses from national or European level representative organisations of disabled people. The findings demonstrate a high degree of motivation and readiness for collaboration in academic research but raise concerns about the readiness of academic institutions to engage disabled people as equal partners within social model and rights‐based approaches. Respondent organisations identified a wide range of research needs that raise challenges for collaborative responses from the academic community. In this way, the findings provide a basis for developing user‐led agendas for European funded research within the emancipatory paradigm, and indentify important opportunities for new international research collaborations between activists and academics.

The European Union and the United Nations Convention on the Rights of Persons with Disabilities: A Story of Exclusive and Shared Competences

The signature and conclusion of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) by the European Community (now European Union) marks a significant step forward in the protection of human rights by the EU. Whilst the EU has become a party to international treaties in the past, this is the first such accession to a human rights treaty. As a consequence, the conclusion of the CRPD by the EU raises many interesting questions, and the path to be followed by the EU in identifying which Convention obligations it is bound by, or should act on, and which obligations fall primarily within the responsibility of the Member States, is, as yet, untrod. This article is a first attempt to examine some of those issues and, specifically, to reflect on what factors will determine whether EU action to implement the Convention would be appropriate in those many areas that fall within the shared competence of the EU and the Member States.

Fine-tuning Non-Discrimination Law: Exceptions and Justifications Allowing for Different Treatment on the Ground of Disability

This article explores the various exceptions to the non-discrimination principle and the justifications for different treatment that apply in the disability context. For the purposes of this article, exceptions are situations that are excluded from the scope of non-discrimination law and where different treatment is allowed, whilst justifications are situations in which non-discrimination law applies, and where de facto different treatment is either required or allowed, and the limits to such requirements. The article begins by briefly discussing the peculiarities of disability non-discrimination law, addressing the requirement to make a reasonable accommodation, the asymmetrical nature of disability non-discrimination law, and positive action obligations. The article then introduces the key non-discrimination requirements found in United Nations and European Union disability equality law, before proceeding to examine a number of exceptions to the non-discrimination principle and justifications for different treatment. The article concludes that exceptions and justifications can be a tool to fine-tune or target non-discrimination law, with the potential to both limit and extend protection, in the context of disability.

Throwing Some Light on Article 13 EC Treaty

Since the signing of the Treaty on European Union in Maastricht in 1992, calls have gradually been increasing for a greater recognition of, and firmer foundation for, fundamental (social) rights within the European Union. To a large extent these calls, which came from the European Parliament, independent EU Advisory Committees, groups representing the interests of EU citizens and residents, and academics, went unheard in Amsterdam, and the new Treaty does not incorporate a comprehensive list of fundamental rights. However the new Treaty does include at least one important provision which will enhance the Community’s ability to protect and promote fundamental rights: the general non-discrimination clause contained in Article 13 E C .1 This new Article is far broader than the existing provisions dealing with discrimination on the grounds of nationality (Article 12 EC, ex Article 6) and equal pay for equal work for men and women (Article 141 EC, ex Article 119), and allows the Community to take action to combat discrimination on the grounds of sex, racial or ethnic origin, religion or belief, disability, age and sexual orientation.

The Development of a New Generation of Sex Equality Directive

After more than twenty years during which sex was the focus of the EC’s equality initiatives, the Amsterdam Treaty resulted in a shift in the legislator’s attention to the grounds covered in the newly inserted non-discrimination clause, Article 13 EC. This Article gave the EC the competence to tackle discrimination on the grounds of sex, racial or ethnic origin, religion or belief, disability, age and sexual orientation, in all areas falling within the scope of the Treaty. The result was the rapid adoption, in 2000, of two directives prohibiting firstly, race and ethnic origin discrimination in a wide range of areas (the Race Directive), and secondly, employment discrimination on the grounds of the religion and belief, disability, age and sexual orientation (the Framework Employment Directive). These second generation equality initiatives built on the experience of the older sex discrimination directives, but, in a number of important respects, went beyond those earlier instruments. The result was a noticeable difference

Treat with care: the right to informed consent for medical treatment of persons with mental impairments in Australia

ABSTRACT One of the most controversial questions that arose during negotiations on the United Nations Convention on the Rights of Persons (CRPD) concerned whether or not health interventions could ever be performed without the recipient’s consent. This is particularly important in relation to persons with severe mental impairments whose consent to or refusal of treatment may be rendered irrelevant under mental health or guardianship legislation. In its General Comment No 1, the United Nations CRPD Committee has stated that States Parties have an obligation to require mental health practitioners to obtain the free and informed consent of persons with disabilities prior to any treatment. This article analyses recent case law in Australia that indicates that while there has been some attention paid to human rights breaches in relation to the detention of persons with mental impairments for treatment purposes, there is a large gap between what the CRPD Committee requires and the ‘weak’ protection that continues to be afforded in relation to informed consent to medical treatment.

The Employment Equality Directive and supporting people with psychosocial disabilities in the workplace: a legal analysis of the situation in the EU Member States

For those individuals who experience mental health problems, there is frequently an impact upon their working lives. A period of poor health may lead to absence from the workplace and pose the challenge of managing a successful resumption of work at a later point in time. In general, being in work can be beneficial for maintaining good mental health. Yet adverse working conditions can be a contributing factor to experiencing mental health problems. Therefore, the workplace is a crucial site for mental health policy. An inclusive working environment makes a contribution to reducing the social and economic consequences of mental ill-health by enabling people to participate in employment and to remain in jobs after a health-related absence. The Employment Equality Directive was adopted in 2000 and it prohibits discrimination in employment and occupation on the grounds of religion or belief, disability, age and sexual orientation. There is no definition of disability found within the Directive, but the Court of Justice (CJEU) has recognised that this includes disabilities arising from ‘psychological impairments’. Therefore, individuals who experience mental health problems may be regarded as disabled and may benefit from the duty on employers to provide reasonable accommodation to allow individuals to have ‘access to, participate in, or advance in employment’. It is widely understood that not every instance of physical ill-health constitutes a disability. In a similar fashion, a distinction can be drawn between mental ill-health and psychosocial disability. Where an individual experiences a short-term mental health problem of limited severity, then this, by itself, may not constitute a disability for the purposes of non-discrimination law. In contrast, a mental health problem that endures or recurs is likely to constitute a psychological impairment and lead to a disability. In this report, the term ‘psychosocial disability’ has been adopted to refer to those psychological impairments that, in interaction with other barriers, give rise to a disability. Common examples of conditions that may give rise to a psychosocial disability include: depression, anxiety, stress, addictions, phobias, eating disorders, schizophrenia, post-traumatic stress disorder, bipolar disorder and personality disorders. In some Member States, the term ‘mental disability’ is commonly used. While this may cover persons with psychosocial disabilities, typically it extends to include also those with intellectual disabilities (e.g. persons with Down’s Syndrome). As this report does not focus upon the relevance of the Directive to persons with intellectual disabilities, we have generally not used the term ‘mental disability’. The information provided in the report is based on questionnaires completed by national experts from the European network of legal experts in gender equality and non-discrimination, as well as desk research by the authors.

The Unfinished Story of EU Disability Non-Discrimination Law

The adoption of a developed disability policy, including the adoption of disability non-discrimination legislation, is a relatively recent concern for the European Union. For most of the history of the EU, the founding Treaties contained no explicit reference to disability, and therefore no disability-specific competence existed. Nevertheless, occasional references to disability, and disabled people, were found in a handful of legal instruments and soft law initiatives, although these did not amount to an attempt to develop a broad disability policy or programme until relatively recently. From a competence-related perspective, the major breakthrough occurred with the Amsterdam Treaty, which came into force in 1999, and which included the first explicit mention of disability. The inclusion of Article 13 (now Article 19 of the Treaty on the Functioning of the European Union (TFEU)) in the European Communities Treaty in 1999 sparked a flurry of academic speculation on its potential value and implications for EC non-discrimination law on grounds including disability. The rapid adoption of two directives, the Racial Equality Directive and the Employment Equality Directive, based on Article 13 EC, generated a further round of academic discussion. Since then the legal situation has evolved significantly: Member States have transposed the directives and a body of related case law has emerged in both the Court of Justice of the EU (CJEU) and within some Member States. Meanwhile the Council has declined to adopt a Commission proposal for a new non-discrimination directive to fill some of the perceived gaps left by the initial two directives.

Positive Action Measures and the UN Convention on the Rights of Persons with Disabilities: Case Note: Communication No. 9/2012 A.F. v. Italy, UN Committee on the Rights of Persons with Disabilities, 19 May 2015

Italian law (Law No. 68/1999 of 12 March 1999) requires that employers with a workforce of more than fifty employees ensure that at least 7 percent of their workforce are people who are registered as disabled. In addition, in order to fulfil this quota, the law requires that public employers reserve up to half of positions to be filled through competitive exams for registered persons with disabilities. The complainant, A.F., was a registered person with a disability who sat a competitive exam at the University of Modena and Reggio Emilia. Only one position was to be filled. A.F. obtained the third highest mark in the exam and was not appointed. He had previously been unsuccessful in such exams. He argued that Law No. 68/1999 had been breached, the 50 percent quota for public exams had not been respected, and that he should be awarded the relevant position. He was unsuccessful before domestic courts and submitted a communication to the UN Committee on the Rights of Persons with Disabilities (CRPD Committee) arguing that Italy had breached Article 27 of the UN Convention on the Rights of Persons with Disabilities (CRPD) on employment. The CRPD Committee found the communication to be admissible because the final court decision, which had examined the claim of discrimination on its merits, was rendered after Italy had ratified the Optional Protocol and A.F. had exhausted all national remedies. It also found that A.F. had not submitted evidence of a breach of his individual rights under the CRPD and that Article 27 had not been violated.

Saying all the Right Things and Still Getting It Wrong:: The Court of Justice's Definition of Disability and Non-Discrimination Law

This article explores and reviews the approach of the Court of Justice of the EU to defining disability under the Employment Equality Directive and concentrates, in particular, on the two most recent cases which were decided in 2014: Z and Kaltoft and the relevance of the UN Convention on the Rights of Persons with Disabilities (CRPD), to which the EU is a party. The article argues that the Courts approach to defining disability, as applied in practice, is not compatible with either the wording or spirit of the CRPD, and there is a real danger that the CJEUs mistaken approach will also trickle down to national courts. This is in spite of the fact that the Court pays lip service to the social contextual model of disability as outlined in the CRPD in its judgments.