Disability Employment Quotas – Help or hindrance?

The UK is unusual in that, unlike many other countries in the EU and elsewhere, it doesn’t have employment quotas backed by sanctions to encourage employers to hire disabled people. Whilst no one would argue against the good intention that sits behind affirmative action, does it really drive the right behaviours by employers and deliver the right outcomes for disabled people?

Earlier this year I helped a global management consultancy review the way it provides Workplace Adjustments (or Reasonable Accommodations) to its employees, starting with a look at how it works in France.

This gave me an insight into the French approach of using a disability employment quota to improve the employment prospects for disabled people and got me thinking about quotas in general.

A simplified summary of the French approach

Employers with more than 20 employees are subject to L’Obligation d’Emploi which stipulates that 6% of the workforce must be Travailleur Handicapé, i.e. officially classed as Disabled Workers.

A person becomes Travailleur Handicapé via RQTH (Reconnaissance de la Qualité de Travailleur Handicapé), an official process involving their doctor and an Occupational Physician.

An employer can meet the quota via direct or indirect employment:

• Direct is where the employer employs a Travailleur Handicapé.
• Indirect is where the employer purchases goods or services from a supplier that provides sheltered employment for disabled people, the value of the purchased goods/services offsetting the fine amount.

Failing to meet the quota results in a fine payable to Agefiph (L'Association de gestion du fonds pour l'insertion des personnes handicapées, The association for the management of funds to integrate disabled people). The fine amount is between 400-500 times SMIC (salaire minimum de croissance, minimum wage) for each ‘missing person’, so roughly 3,688€ - 5,532€.

Employers can make an agreement between the Labour Administration and Unions on providing funding for disability employment over, say, a 3 year period. In this scheme the employer commits a sum of money to the employment of Travailleur Handicapé, including training and making Reasonable Accommodations.

The sum is equal to the total fine amount they would pay if they don’t meet the quota over the period of the agreement. Any unused money at the end of the agreement is passed to Agefiph.

We're not in Kansas anymore

This was quite an eye opener for me and a bit of an anathema: the UK ditched registration of disability in 1994 along with employment quotas due to campaigning by activists and Disabled Peoples Organisations (DPOs) who felt they were counterproductive to mainstreaming the employment of disabled people.

It also felt to me that the French approach was steeped in the Medical Model of disability and furthermore the French HR people I spoke to said that disabled people often felt uncomfortable going through the RQTH process due to it being intrusive and arduous.

I could also envisage it driving the wrong behaviour by employers and delivering less than ideal outcomes for disabled people, e.g.

• The concept of indirect employment provides a ‘get out of jail card’ for employers who would rather not have the hassle (as they see it) of employing disabled people.
• In order to meet the quota, employers might hire disabled people to work in artificially created token roles.
• Indirect employment perpetuates ring-fenced, non-mainstream employment for disabled people (again at odds with the UK which, for example, saw its Remploy Factories close over the period 2008-13, a move endorsed by the Sayce Report in 2011).

Lastly, I can see the requirement for Travailleur Handicapé status via RQTH penalising both disabled people and employers:

• Without going through the process disabled people aren’t afforded protection under employment law, and
• A responsible employer who wants to make Reasonable Accommodations for a disabled employee who doesn’t have (and doesn’t want to have) Travailleur Handicapé status will pay twice – once for the accommodations and again for the fine.

So is the UK’s approach better?

The broad definition of disability under the UK’s Equality Act and legal duty for employers to make reasonable adjustments does seem a lot simpler.

But is this just Anglo Saxon bias on my part and does a quota system like France’s actually deliver the right outcomes for disabled people and employers? I recently came across a couple of papers that gave me further food for thought.

Firstly the research paper “Disability quotas: past or future policy?” published in Feb 2016 by Alessandra, Elena Radevich-Katsaroumpa and Malcolm Sargeant certainly seems to support some of my observations and gut feelings. For example:

“Quota systems are concerned with numbers and do not necessarily reflect either the employer’s needs for certain skills, nor the disabled workers true abilities.”

“The majority of employers are more willing to be sanctioned and pay a fine than to hire a person with an impairment of any sort.”

Likewise the paper “Retention deficit: A new approach to boosting employment for people with health problems and disabilities” by Resolution Foundation June 2016 suggested:

“Overall, while there are some examples of quotas having some positive impacts, it is not clear that they always achieve desired ends, and appear difficult to implement effectively.”

So the reports appeared to endorse my feelings.

However, my eye was drawn to a chart in the Resolution Foundation’s report that showed that the employment gap between disabled and non-disabled people was 8% higher in the UK vs the EU average, and in a sample of 31 European countries the UK was ranked 22 in terms of the gap (so 21 other countries including those with quotas were doing better).

Are we comparing apples with apples?

So what are we to draw from this? I’ll fly a kite here: maybe countries with quota systems have stricter definitions of disability than the UK (e.g. as I understand it in Germany to be qualified as disabled a person must have 50% less capability than a non-disabled person) and quota systems therefore ensure that more severely disabled people will have direct or indirect employment.

So maybe quota systems are better at offering work to a smaller percentage of the population because they are setting the bar on what constitutes disability higher, consequently a greater percentage of people as defined by the law as disabled in these countries will be in employment compared to the UK.

If so that’s undoubtedly positive for the most disabled people in society who are unlikely to be able to enter mainstream employment via any other route, but is that at the expense of those who are not disabled “enough” in the eyes of the law to count as disabled but still face significant barriers in entering or staying in the workplace?

Does it help challenge negative perceptions of disability and encourage employers to see the vast pool of disabled talent that exists and that disabled folk are just like any other and that they can - and want to - enter mainstream employment?

The fact is that if employers create a level playing field via adjustments disabled people can and will perform on an equal basis with their non-disabled peers, often bringing valuable life experience and different thinking to the organisation as a bonus.

For me then educating employers to be disability confident and mainstreaming the hiring of disabled people is a better route to take than affirmative action – but I’d be interested to hear other points of view on this.