I. Introduction

In countries like India, the number of people with disabilities is so high, problems are so complex, resources are scarce, and social conditions are so destructive that only the law can bring about a gradation in a consistent way. Even if legislation alone cannot change the social structure in a short period of time, access to education and employment for persons with disabilities, public buildings, shopping centres, transportation, and telecommunications can be improved. Ultimately, the effectiveness of well-targeted legislation will be profound and free. Further coming to the employment scenario of people with disabilities as per the 2011 census, “India has 2.68 Crores (2.21%) of people with disabilities. But the actual number of people with disabilities is much more than the census found; the estimate ranges from 5% to 15% of the population. Only 26% of the total population according to the 2011 census can work, and 78% of people with disabilities of working age are men.”[1]

The unemployment rate in Disability is quite high when it comes to women, and further, it can be seen that the inclusion of persons with disability is quite low in private organisation. Despite the huge amount of resources, the issue of hiring people with disabilities is very low on the stakeholder agenda. The total number of people with disabilities in 2022 is estimated to be around 10 million, which is a significant portion of human capital, and ignoring this will result in a loss of about 5 to 7% of GDP.[2]  As per the research report[3] , “only a few organisations have demonstrated a positive work culture and employment strategy for people with disabilities. Others still have concerns and suspicions that are preventing them from taking advantage of this huge pool of resources. Lack of thought and awareness has been one of the biggest obstacles to creating employment opportunities for people with disabilities, especially in the private sector”. Given the statistics, it is becoming crucial to focus on affirmative, holistic and sustainable inclusion of persons with disabilities in the workplace.

Chart Showing Sector-Wise Representation of Persons with Disability[4]

Graph Showing Educational Status of Persons with Disability as per 2011 census.[5]

Graph Showing Representation of Persons with Disabilities in Private Sector[6]

Graphs Showing Status of Persons with Disability in terms of Employment[7]

II. General challenges with respect to the inclusion of persons with disability in the workplace

As we can see from the above charts and statistics, persons with disability are highly under-represented when it comes to job opportunities, especially in the private or corporate sector. Before we start discussing the legal aspects, we should first look into the general reasons behind such exclusion and underrepresentation.

(A) Major Hurdles:

1. Low-Income Backgrounds:

Most of the persons with disability belonging to economically weaken strata of the social cause of which their education level and skill sets are not efficient enough to provide them with opportunities in the corporate sector

2. Ill-Equipped Workplace:

Most of the workplace, both in the private and Government sector, are not disabled-friendly, thereby making it quite difficult for them to access it, may it be infrastructure, working equipment, mobility etc.

3. Lack of Sensitisation:

Coming to the workplace environment, the majority of the co-workers see persons with disability as a burden and therefore avoid either acceptance or consider them as a burden, thereby making them feel alienated, creating a workplace stigma and also affecting the morals of persons with disability. All these are mainly due to a lack of awareness and sensitisation.  

(B) Benefits of Inclusion of Persons with Disability in the Workforce :

Now that we have seen some of the major basic reasons behind the exclusion or under-representation of persons with a disability, the further following are some of the major reasons why corporate’s should favour the inclusion of persons with disability in the workplace:

1. Corporate Social Responsibility:

Inclusion of marginalised section, especially persons with a disability, will add and contribute in real terms towards the goal of social responsibility of corporates.

2. Low Attrition:

Persons with disability are quite loyal workers; they won’t prefer switching company often and a big edge in high attrition sectors like hospitality.

3. Productivity Edge:

Persons with disability are highly intellectual and are less distracted, also have low absenteeism; they can immensely contribute to the educational & research field.[8]

III. Indian legal scenario & disability inclusion

The Indian Government ratified the Convention on the Rights of Persons with Disabilities (CRPD) in 2007; it provides “to promote, protect, guarantee and encourage the full and equal enjoyment of all human rights and fundamental freedoms for all persons with disabilities.” It also includes “encouraging employment and career development opportunities for people with disabilities in their work-life”. In line with this, India’s new disability law, The Rights of Persons with Disabilities Act, 2016, for the first time, “brought the private sector into its ambit by providing a statutory framework to ensure equal opportunities are provided to persons with disabilities (“PwD”) in all organisations unlike the old law which was applicable only to the public sector in India, the RPD Act”.[9]

(A) Analysis of RPD Act, 2016 with respect to the inclusion of Persons with Disability at the workplace.

Prior to the Disabilities Act 2016, laws governing the rights of persons with disabilities were prevalent in the “Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act, 1995 (“Disabilities Act, 1995”), the Mental Health Act, 1987, the Rehabilitation Council Act of India and the National Trust (for the welfare of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities) Act, 1999.” But, these laws do not specifically provide an equal opportunity for employment issues. The Act has been made applicable for all establishments, including private establishments.

1. Salient Features of The Act with respect to the private establishment:

The definition of a private establishment under the RPD Act is quite broad and includes “a company, firm, cooperative or other society, association, trust, union and factories. It is applicable to every establishment having more than 20 employees.”[10]

• Equal Opportunity Policy:

As per the Act, the private organisation are under an obligation to draft an equal opportunity policy for PwD, and which should include “the facilities and amenities to be provided to PwD to enable them to effectively discharge their duties in the entity; list of suitable posts/roles identified for PwD; manner of selection of PwD for various posts, post-recruitment and pre-promotion training, preference in transfer and posting, special leave, preference in allotment of residential accommodation, if any, and other facilities to be provided to the PwD; provisions for assistive devices, barrier-free accessibility and other facilities provided or to be provided to PwD by the entity.” [11]

• Appointment of Liaison Officer:[12]

The Act mandates that “private organisation should appoint a liaison officer, who has to be

appointed to oversee the recruitment of PwD and make the necessary provisions and facilities for such employee.”

• Maintenance of Records:

Further, it provides for the maintenance of records containing details of the disabled persons who are employed at the establishment. And, shall include “the number of persons with disabilities who are employed; date of commencement of employment; name, gender and address; nature of disability; nature of work being rendered; and nature of facilities being provided by the employer.” [13]

• Provisions for Maintenance of Accessibility Standards:[14]

It also provides that establishments shall ensure accessibility standards relating to the physical environment, transport and information and communication technology as per the standards prescribed in the RPD Act. Like, “Barrier-free built environment having elevators/ramps for the benefit of wheelchairs for PwD; Ensuring the documents uploaded on the website are in Electronic Publication (ePUB), or Optical Character Reader (OCR) based PDF format, Environment for Persons with Disabilities and Elderly Persons and issued by the Government of India, Ministry of Urban Development, in March 2016; [15]Standard for Bus Body Code for transportation systems as specified in the notification of the Government of India in the Ministry of Road Transport and Highways in September 2016.[16]

As per the Act, “Existing public buildings, including workplaces, have been allowed a period of five years to adhere to the standards of accessibility prescribed by the Government. Further, no one shall be granted permission to build for new construction projects or certification of completion for under-construction buildings, unless it has adhered to the accessibility norms formulated by the Central Government”.[17]

• Compliance & Penalty Provisions:

As per the Act, “Non- compliance of the obligations (other than maintenance of records of PwD employees) will amount to an offence and shall be fined with INR 10,000 for the first contravention and for any subsequent contravention with fine up to INR 50,000, which may be extended to INR 500,000.” [18]

2. Challenges & Loopholes With Respect to the provisions with regard to Private Establishment:

While the initiative taken by the Government in recognising the needs of the disabled is commendable, there is inadequate clarity on various aspects under the Disability Law, which the Government may need to clarify in due course. For instance, the Disability Law requires “employers (including in the private sector) to include in their Equal Opportunity Policy, details such as special leaves, accommodation facility etc. that shall be provided to the disabled persons working at the establishment”.[19] However, Disability Law does not clarify, “the quantum of special leaves that need to be provided nor does it mentions the purpose(s) for which such leaves may be availed and the standards for accommodation facility etc.”

Further, the Disability Law does not provide “a transition framework or a timeline for ensuring compliance under the Disabilities Act, 2016”. The obligations “cast upon private establishments under the Disability Law such as providing training to the disabled, assistive devices, ensuring accessibility norms etc. would entail additional costs for employers.” While government establishments should be able to accommodate these additional costs, the Disability Law, “does not provide for any incentives to private establishments to enabling them to set- off the costs incurred”. Similarly, there “is some ambiguity on the authority that would be responsible for the implementation of the provisions of RPD Act and monitoring compliances by private establishments like the “appropriate government” (state or central) for private establishments is yet to be ascertained”. Also, the Act “does not impose any obligation on private establishments to recruit persons with disabilities”. However, with a view to recruiting more persons with disabilities, “the appropriate government and the local authority shall provide incentives to private employers who ensure that at least five percent of their workforce is composed of persons with disabilities”.[20] Similarly, the penalty provision provides, “that a company fails to comply, both the company and an individual can be held responsible. Directors, officers and managers of a company will be individually liable if it is established that the offence was committed with their consent, or is attributable to their negligence.” In contrast, similar statutes in other jurisdictions adopt a persuasive approach rather than a punitive like the UK Equality Act, 2010 and the Japan Basic Law for persons with disabilities.[21]

IV. Learning from best practices: a case study of united kingdom disability legislative measures for enhancing the inclusion of persons with disability

If we refer to the statistics of the United Kingdom with regard to the employment of persons with a disability, “47.6% of disabled adults are in employment compared with 79.2% of non-disabled people. This shows the status of inclusion of persons with disability in the employment sector. Further, Employers have “a duty under the Equality Act to make ‘reasonable adjustments’ for people with a disability if there are any aspects of a job or workplace which put them at a disadvantage. An employer failing to make ‘reasonable adjustments’ for a disabled job applicant or employee is one of the most common types of disability discrimination. It also extends protection against harassment of employees by third parties to all protected characteristics.”[22] Also, “Discrimination arising from disability” was a newly formulated test introduced after the House of Lords decision in Lewisham LBC v Malcolm[23] and EHRC. Further, Section 15 Equality Act 2010 creates “a broad protection against being treated unfavourably “because of something arising in consequence of” the person’s disability.” In 2013, the UK Government introduced a disability and health employment strategy (DWP, 2013) with proposals to reform employment support for disabled people and those with health conditions. Some of the major initiatives are as follows:

1. In October 2010, a “Work Choice’ a specialist employment programme for disabled people offering three levels of help: work entry; in-work support for up to two years; and longer-term in-work support”.[24]
2. In May 2016, several government departments created a task force to improve the accessibility of apprenticeships, in particular for people with a learning disability. The aims of the taskforce are “to reach an understanding of the issues and barriers that affect people with learning disabilities in accessing and completing an apprenticeship; to identify solutions that could help overcome these barriers and raise participation levels”.[25]
3. The Personal Independence Payment, which is “designed to help with some of the extra costs associated with a long-term condition or disability and is replacing Disability Living Allowance for people of working age (those aged 16-64)”. [26]
4. Access to Work Program “usually provides a grant to pay for the cost of support to the employer. For example, it can provide funds towards: special aids and equipment, adaptations to equipment, travel to and from Work, communication support at interview, a wide variety of support workers. Access to Work also has a Mental Health Support Service. This can offer support to individuals with a mental health condition who are absent from Work or finding Work difficult.”[27]
5. Establishment of Equality and Human Rights Commission. Its role is in research, promotion, raising awareness and enforcement of equality standards.
6. The Work and Health Programme (WHP) was launched throughout England and Wales on a rolling basis between November 2017 and April 2018. “It predominantly helps people with a wide range of health conditions or disabilities, as well as the long-term unemployed, and certain priority groups, to enter into and stay in work, using the expertise of private, public and voluntary, and community sector providers”.[28]

V. Conclusion

Given the significant population of persons with disability in India, it is high time employers put in play creative methods of workplace inclusion to give meaning to workplace diversity. ‘Diversity is being invited to a party; inclusion is being asked to dance’. Therefore, it is critical for employers to make an extra effort, not only to employ persons with disability but also to ensure that their workplaces are both inclusive and enabling. Even though the law provides for various mechanism and policies for inclusion of Persons with disability in the workforce and for the prohibition of discrimination but, still there exist many loopholes which are acting as a barrier in smooth and effective implementation of the law, thereby failing its objective and the plight of the persons with a disability still continues. Therefore, the Government should focus on bringing more clarity & wider policy into action. There is a need for a strict monitoring mechanism from the side of the Government. The Government should also encourage smaller organisation with financial & training support to increase inclusion. Governments have a responsibility to provide ameliorative policies and programs to address historically disadvantaged groups. Public policy decisions, and non-decisions, have played a primary role in the disadvantage, exclusion and marginalisation that people with disabilities still face today. Providing affirmative action and other types of ameliorative programs does not undermine equality rather enhances the inclusion of persons with a disability further under Article 14[29] , which also provides for intelligible differentia; thus, Government should come with binding provisions so that a robust mechanism should be developed and the persons with a disability participation in the employment can be increased.

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[1] Disabled Persons In India: A Statistical Profile, 2016, Social Statistics Division, Minsitry of Statistics & Program Implementation, Government of India Report (Available at: http://mospi.nic.in/sites/default/files/publication_rep orts/Disabled_persons_in_India_2016.pdf, last accessed on 28^th February 2021 at 01:10pm)

[2] Mita Mehta, Ranu Kumari, Komal Sharma & Arti Chandani Are Indian Organizations Disabled Friendly?  Inclusive Talent Acquisition Function for Indian Organizations, International Journal of Innovative Technology and Exploring Engineering, pg.139, Vol. 8, October 2019

[3] Ibid

[4] Disabled Persons in India: A Statistical Profile, 2016, Social Statistics Division, Minsitry of Statistics & Program Implementation, Government of India Report (Available at: http://mospi.nic.in/sites/default/files/publication_rep orts/Disabled_persons_in_India_2016.pdf, last accessed on 28^th February 2021 at 01:10pm)

[5] Ibid

[6] Ibid

[7] Ibid

[8]Ashley Halligan, Valuable Workforce: Hiring Disabled (Available at http://blog.softwareadvice.com/articles/caf m/valuable-workforce-hiring-disabled-americans-in-facility-management-1075312/, last accessed on 1^st March 2021 at 09:30pm)

[9] Rights of Persons with Disabilities Act, 2016, Vikaspedia (Mar. 1 2021, 22:19), https://vikaspedia.in/social-welfare/differently-abled-welfare/policies-and-standards/rights-of-persons-with-disabilities-act-2016

[10] Ibid

[11] Rule 8(2) of the Rights of Persons with Disabilities Rules, 2017

[12] Rule 8(3) (e) of the Rights of Persons with Disabilities Rules, 2017

[13] Section 22 of the RPWD Act

[14] Rule 15 (1) of the Rights of Persons with Disabilities Rules, 2017

[15] Section 44 (1) of the RPWD Act

[16] Ibid

[17] Ibid

[18] Section 89 of the RPWD Act

[19] Nishanth Ravindran, Preetha S & Vikram Shroff, India’s New Law On Disability Extends To Private Employers, NDA Blog (Available at: http://www.nishithdesai.com/information/news-storage/news-details/article/indias-new-law-on-disability-extends-to-private-employers.html, last accessed on 1^st March 2021 at 01:19pm)

[20] Supra fn 14

[21] Lus Boris, A new law for India to protect the rights of persons with disabilities, Lexology (Available at: https://www.lexology.com/library/detail.aspx?g=608adcfc-eb9e-4b4a-a1a1-3e268f6c6a5a, last accessed on 1^st March 2021 at 11:10pm)

[22] Equality Act 2010, Duty on employers to make reasonable adjustments for their staff, Government Equality Office, United Kingdom (Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploa ds/attachment_data/file/138118/Equality_Act_2010_-_Duty_on_employers_to_make_reasonable_adjustments_f or….pdf, last accessed on 2^nd March 2021 at 09:11am)

[23] Lewisham LBC v Malcolm [2008] UKHL 43

[24] Evaluation of the Work Choice Specialist Disability Employment Programme Findings from the 2011 Early Implementation and 2012 Steady State Waves of the research,  Department of Works & Pension, UK (Available at:https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/210683/rrep846.pdf, last accessed on 2^nd March 2021 at 10:17am)

[25] Disabled People’s Inclusion Within Uk Technical and Vocational Education And Training, British Council Report (Available at: https://www.britishcouncil.org/sites/default/files/disabled_peoples_inclusion_within_uk_tv et.pdf, last accessed on 2^nd March 2021 at 11:14am)

[26] Ibid

[27] Ibid

[28] Andey Powell, Research Briefing on Work and Health Programme, UK Parliament (Available at: https://commonslibrary.parliament.uk/research-briefings/cbp-7845/, last accessed on 2^nd March 2021 at 12:18pm)

[29] Constitution of India,  1950.

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