Around 300,000 people work in sheltered workshops in Germany. They receive only an allowance in exchange for their labour. Their chances of finding work in the open labour market are very low. Until this changes, realisation of the right to work and employment within the meaning of the UN Convention on the Rights of Persons with Disabilities will remain out of our reach.
Most of us think of employer-employee relationships associated with social insurance contributions when the topic of work and employment comes up. This association is not entirely appropriate in the context of persons with disabilities though. Many disabled people are employed not on the open labour market but in what are called sheltered workshops, which have been created specifically for disabled persons. Nearly a million severely disabled individuals are employed on the open labour market, versus 300,000 persons working in sheltered workshops.(1) Seen in terms of the economically active population as a whole, people working in sheltered workshops represent almost one percent of Germany’s economically active population.(2) What is more, those figures are on the rise: the number of sheltered workshops, the number of people who work in them and the amount of public funding allocated to them have all been increasing for years. Today there are over 700 sheltered workshops in Germany, with almost 3000 individual premises. More than 75 percent of the people who work at those sites have a cognitive/intellectual impairment, around 20 percent have a psychological impairment and three to four percent have a physical impairment.(3) It is not that conditions at the sheltered workshops are poor: on the contrary, the people who work at sheltered workshops find support programmes there that would not, as a rule, be available to them on the open labour market. For that reason many of them feel comfortable at their sheltered workshops, and more than a few find it difficult to imagine working on the open labour market. Moreover, many of those who are employed at sheltered workshops enjoy pension security, as they will be entitled to a pension on the grounds of total disability after 20 years of employment at a sheltered workshop.
Nonetheless, the system of sheltered workshops is troubling from the perspective of human rights:
Firstly, persons with disabilities do their work there in what amounts to a world apart, separated from those without disabilities. Secondly, the people in question often have no real choice – either because an absence of other training prospects from the very start means that no other options are open to them, or because there is no path that would lead back out of the workshop. And thirdly, they are not paid adequate wages for what they do, receiving instead only a very small sum: the average monthly payment received by a workshop employee in 2014 was EUR 181.(4) The legal minimum wage does not apply to workshop employees. The rationale offered for this is that a person employed at a workshop is not in an employer-employee relationship, but employer-employee-like relationship, the primary focus of which is not the performance of work. The aim being pursued, according to this rationale, is reintegration in employment life with the assistance of an employment programme.
All of this runs counter to the what the human right to work and employment, which applies to all people, actually says. The UN Convention on the Rights of Persons with Disabilities (UN CRPD) specifies that persons with disabilities have a right to work just as other persons do. This includes the "opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities" (Article 27 of the UN CRPD). The UN CRPD does not suggest that exclusive employment programmes in sheltered workshops would fulfil this right.
Germany has been under an obligation to make the open labour market more inclusive since it ratified the UN CRPD in 2009. Yet it has done little to honour that obligation since then: persons with disabilities continue to be excluded from the open labour market. Their exclusion is not due only to the increasing demands made on employees in a more technical and more complex labour environment and the disappearance, or the exporting of less complex jobs: there are many barriers to access to the primary labour market. These include rigid organisational structures, lack of awareness of the needs of persons with cognitive or psychological impairments and deeply ingrained prejudices against persons with disabilities. The exclusion of persons with disabilities from the labour market runs counter to the declared intentions of the political leadership. For years, Germany's leaders have been declaring the aim of bringing more disabled people into the workforce and increasing the permeability of the sheltered workshops. Another aim declared has been to prevent the automatic transfer of young people, e.g. those with intellectual impairments, into sheltered workshops upon completion of their special education. Although the sheltered workshops have a bridging function and are de jure supposed to promote "the transition of eligible persons onto the open labour market through appropriate measures" (§136 subsection 1 of the German Code of Social Law [SGB], book IX), they are not succeeding in this regard.
Also disquieting from the human rights perspective is vocational training: the general VET system in Germany has not yet been made inclusive, and many of the training offerings intended specifically for persons with disabilities are unsuited to the requirements of the labour market. A recent Federal Constitutional Court decision pointed out that in order to make access to an occupation possible in practice, a training programme must meet certain conditions: it must teach specific skills, its quality must be recognised by potential employers and it must lead to a qualification comparable to other qualifications on the labour market.(5) This last criterion is not met by vocational training associated with the sheltered workshops. However, studies done elsewhere have shown that occupational integration can be successful when, as in Sweden for instance, the focus is on creating work environments on the open labour market that are adapted to the needs of disabled people and when special, separate options for persons with disabilities are not in fact promoted.(6) The bottom line for more than 300,000 people in Germany? They perform their work under special supervision in a sheltered environment that, in most cases, stands apart from the normal working world. In exchange, they receive an allowance that strictly limits the extent to which they can engage in activities that involve costs.(7) Incidentally, this remains the case even after the individual has reached the end of his or her working life: the entitlement to a reduced-earning capacity pension after 20 years of service in a sheltered workshop is worth nothing to those former workers who live in residential institutions, as many do. People living in those facilities receive only an allowance, because the pension, as a "benefit in lieu of wages", is retained by the public institution funding the relevant social services.(8)
In 2015, in the context of its examination of UN CRPD implementation in Germany, the UN Committee on the Rights of Persons with Disabilities criticised the sheltered workshop system in its current form. The Committee voiced concerns about the general segregation on the German employment market, financial disincentives and the circumstance that "segregated, sheltered workshops fail to prepare workers for or promote transition to the open labour market."(9) In the Committee’s view, sheltered workshops are not part of an inclusive labour market, but can only have a bridging function along the path to the open labour market. The Committee therefore urged the Federal Government to create an inclusive labour market in line with human rights. A labour market is inclusive within the meaning of the UN CRPD when a need for separate structures like the sheltered workshops no longer exists. The focus should be on the creation of accessible work environments in both the public and private sectors on the open labour market. The Committee also recommends that sheltered workshops be phased out – by using exit strategies and specific timelines as well as effective incentives for employment on the open labour market. What the Committee is saying is that a systematic shift of priorities is necessary (along with an associated reallocation of financial resources): The support of inclusive employment models on the open labour market should become a focus of priority. This must not be allowed to place a burden on the individuals concerned or negatively impact their social security or pension provisions, however. The Committee therefore explicitly advises that employees with disabilities must not face any reduction in the social benefits and pension entitlements currently tied to sheltered workshops.(10)
Thus, the Committee is not requesting that the state turn its back on people currently employed in sheltered workshops or that it interfere in the labour market in a manner detrimental to competition. Rather, it wants the government to insist that both public and private employers provide a working environment that is equally suitable for use by persons with and without disabilities, and it wants the government to enable them to do so in a cost-effective manner by itself providing rational support programmes.
Both in political circles and in the discourse among specialists, too little attention has been paid to the human rights requirements arising from the UN CRPD and the recommendations of the UN CRPD Committee. While there is widespread consensus about the need for changes and the desirability of having more opportunities for persons with disabilities on the labour market, the desirability of the German sheltered workshop system itself has not been called into question. Politicians, organisations representing sheltered workshop employees and the sheltered workshops themselves have been holding fast to the status quo, and the aim of further stabilising the sheltered workshop system continues to be pursued at the federal level.
Most politicians and experts concede that more young people should participate in in-company training and above all complete VET programs in recognised training occupations. They agree, too, that sheltered workshops need to be more conducive towards transitioning onto the open labour market, and that viable alternative options must exist in order to create the possibility of choice. For instance, the Conference of Ministers of Labour and Social Affairs (ASMK) called for the creation of options that would enable people employed in sheltered workshops to participate in working life through other service providers and for the introduction of a "budget for employment", which would enable benefit recipients to use their benefits towards employment requiring the payment of social security contributions on the open labour market at collectively agreed or locally standard rates rather than towards employment in a sheltered workshop.(11) These elements will probably be incorporated into law in conjunction with the Federal Participation Act (Bundesteilhabegesetz).(12) The Federal Government has declared its intention to intensify its efforts to offer options other than sheltered workshops to persons with disabilities, including young people. It has said, for instance, that the emphasis in occupational orientation measures for persons with disabilities should be on increasing their chance of obtaining in-company VET.(13) All of this has met with very widespread support in civil society.(14)
However, what all of this means for the future of the sheltered workshops remains a controversial question. Some of the framework conditions that have a stabilizing effect on the sheltered workshops in their present form as a separate system appear likely to remain unchanged for the foreseeable future. The sheltered workshops will enjoy a privileged status in public procurement procedures, businesses will continue to be able to partially meet their obligation to employ severely disabled workers by contracting with sheltered workshops, and the flow of public money into the construction of new sheltered workshops continues.
The politicians responsible are unwilling to engage in a serious discussion of a CRPD-compliant alternative to the sheltered workshops. From a human rights standpoint though, there is an urgent need for debate about how the sheltered workshops can be merged into the primary labour market. One cause of particular concern is the Federal Government's repeated announcement that it does not intend to follow up on the CRPD Committee's recommendation to phase out the sheltered workshops.(15)
At the same time though, legal restrictions governing access to the sheltered workshops continue to apply and thus continue to ensure that the sheltered workshops are exclusive in terms of who they employ: only disabled people who are capable of "performing a minimum amount of economically useful work"(16) are entitled to employment at a sheltered workshop. It appears that this contradiction will remain unchanged, as will the provision exempting the sheltered workshops from the legal minimum wage requirement, which has not yet been re-examined by the Federal Government, despite well-founded criticism.(17)
Persons with disabilities have a right to work. This work – according to the UN Convention on the Rights of Persons with Disabilities – must secure their livelihoods and be freely chosen. Many persons with disabilities currently have no alternative to employment in the sheltered workshops because workplaces on the open labour market are not set up to be inclusive. As long as this remains the case, realisation of the right to work and employment within the meaning of the UN Convention on the Rights of Persons with Disabilities will be out of our reach.
Therefore the Federal Government should
1 Cf. report on statistics/labour market by the Federal Employment Agency (2015): "Der Arbeitsmarkt in Deutschland - Die Arbeitsmarktsituation von schwerbehinderten Menschen". Nuremberg, p. 7.
2 In 2014, the economically active population in Germany was 42,032,000. Cf. Federal Statistical Office (2015): Mikrozensus 2014, Fachserie 1, series 4.1.1, 2014, table 1.3, p. 36.
3 For more on this, see the website of BAG WfbM (Bundesarbeitsgemeinschaft Werkstätten für behinderte Menschen), the national association representing the sheltered workshops: Menschen in Werkstätten. www.bagwfbm.de/page/25 (retrieved: 21 May 2016, some content in English, most in German only).
4 Cf. www.einfach-teilhaben.de/DE/StdS/Ausb_Arbeit/Werkstaetten/Arbeitsentgelt/arbeitsentgelt_node.html on the web portal produced by the Federal Ministry of Labour and Social Affairs (retrieved: 21 May 2016, in German only).
5 Federal Constitutional Court (2016): Decision of 17 February 2016. 1 BvL 8/10 - Rn. 65.
6 Berger, Catrin, GESIS – Leibniz Institute for the Social Sciences (2015): "Deutschland noch weit von UN-Zielvorgaben entfernt". In: Informationsdienst Soziale Indikatoren, issue 53 (ISI 53), p. 6.
7 Federal Ministry of Labour and Social Affairs (publ.) (2013): Teilhabebericht der Bundesregierung über die Lebenslagen von Menschen mit Beeinträchtigungen. Bonn, p. 208.
8 Ibid. p. 364.
9 UN, Committee on the Rights of Persons with Disabilities (2015): "Concluding observations on the initial report of Germany", UN Doc. CRPD/C/DEU/CO/1 of 17 May 2015, para. 49.
10 Ibid. para. 50.
11 Minutes of the 90th Conference of Ministers of Labour and Social Affairs (ASMK) of 27–28 Nov. 2013, page 10.
12 Cf. the Federal Government's draft for its "National action plan 2.0" for UN CRPD Implementation (version of 20 April 2016), sect. 3.1, and the draft bill intended to strengthen the participation and self determination of persons with disabilities (Bundesteilhabegesetz – BTHG) (version of 21 May 2016).
13 Draft of the "National action plan 2.0" (German only), see note 12, sect. 3.1.; Federal Ministry of Labour and Social Affairs (publ.) (2013), see note 7, pp. 19, 289.
14 Cf. Federal Government Commissioner for Matters relating to Disabled Persons /German Institute for Human Rights (publ.) (2016): "Prüfung abgelegt – und nun? Die Empfehlungen des Fachausschusses zur UN Behindertenrechtskonvention als Impulsgeber für Bund, Länder und Kommunen". Berlin, pp. 47 ff.
15 Ibid.; see also the draft of the "National action plan 2.0" (German only), especially note 12, sect. 3.1., and the Federal Government’s response of 04 Feb. 2016 to the minor interpellation from the DIE LINKE parliamentary group, BT-Drs. 18/7467, p. 5.
16 Cf. §136, subsection 2 of the German Social Code, book IX (SGB IX).
17 Cf. for instance, Scheibner, Ulrich (2015): "Das Recht der Beschäftigten im Arbeitsbereich der Werkstätten für behinderte Menschen auf den Mindestlohn". In: br 2015, issue 6, pp. 158–163 (part 1) and issue 7, pp. 188–195 (part 2).