The case of Richard Sahlin v. Sweden. Views of the Committee on the Rights of Persons with Disabilities dated August 21, 2020. Message No. 60/2019.
In 2019, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Sweden.
As seen from the text of the Considerations, in the spring of 2015, a competition was announced at the University of Södertern, which is a public institution, to fill the permanent position of lecturer (associate professor) of the Department of Public Law. Previously, the author had to temporarily work at the University of Södertern, whose management is aware of his need for sign language translation. The competition committee considered him the most qualified candidate for this position, and as one of the stages of the employment procedure, he was given the opportunity to conduct a trial lecture. Despite the level of his qualifications, on May 17, 2016, the university stopped the process of filling the vacancy, stating that paying for sign language translation would be too costly to guarantee the author's right to employment on the basis of equality with other candidates. The cost of the necessary sign language translation was estimated at SEK 520,000 (US$ 55,341) per year. The university's annual budget for human resources exceeded half a billion Swedish kronor, and in 2016 the budget surplus amounted to 187 million Swedish kronor (US$20 million). No further analysis of alternative forms of workplace adaptation or reasonable adaptation, including the adaptation of official functions that do not require sign language translation, such as measures to monitor students and conduct exams and instruction via the Internet, was carried out by the University administration at any stage of the employment process (paragraph 2.2 of the Considerations).
The Committee's legal position: in accordance with paragraphs (a), (e), (g) and (i) of article 27 of the Convention on the Rights of Persons with Disabilities, States parties are responsible for prohibiting discrimination on the basis of disability in all matters relating to all forms of employment, including conditions of employment, recruitment and employment, job retention, promotion and safe and healthy working conditions; expansion of employment opportunities for persons with disabilities and their promotion in the labor market, as well as for assistance in finding, obtaining, maintaining and resuming work; employment of persons with disabilities in the public sector; and for ensuring reasonable accommodation for persons with disabilities in the workplace. According to article 2 of the Convention, "reasonable accommodation" means making, when necessary in a particular case, necessary and appropriate modifications and adjustments that do not become a disproportionate or unjustified burden, in order to ensure that persons with disabilities, on an equal basis with others, can enjoy and exercise all human rights and fundamental freedoms (paragraph 8.4 of the Considerations) (The case of Jungelin v. Sweden (CRPD/C/12/D/5/2011), paragraph 10.4.).
Article 5 of the Convention prohibits all forms of discrimination against persons with disabilities, including denial of reasonable accommodation as a prohibited form of discrimination, and that this prohibition does not allow for progressive realization. This means that all forms of discrimination are equally contrary to the Convention and that it is impossible to distinguish between violations of the right to equality and non-discrimination in terms of their so-called severity. The Committee also recalls that reasonable accommodation is an ex nunc obligation that arises from the moment when a disabled person needs access to a situation or environment inaccessible to him or when he wishes to exercise his rights (V.F.K. v. Spain (CRPD/C/21/D/34/2015), clause 8.4.). This means that the guarantor of rights must enter into a dialogue with the disabled person in order to include him in the process of making possible decisions that will allow him to exercise his rights and expand his opportunities more effectively (paragraph 8.5 of the Considerations).
In assessing the reasonableness and proportionality of adaptation measures, States parties have a certain margin of appreciation. As a rule, it is the courts of the States parties to the Convention that are competent to assess the facts and evidence relevant to a particular case, except in cases where it can be established that the assessment was manifestly arbitrary or constituted a denial of justice (paragraph 8.6 of the Views) (Jungelin v. Sweden (CRPD/C/12/D/5/2011), item 10.5.).
The search for reasonable accommodation opportunities should be a process of cooperation and interaction between the employee and the employer, aimed at finding the best solution that meets the needs of each of them (V.F.K. v. Spain (CRPD/C/21/D/34/2015), paragraph 8.7.). Resolving the issue of As to what measures of reasonable accommodation should be taken, the State party should ensure that public authorities establish what effective adjustments can be made to enable the employee to perform his or her basic duties (paragraph 8.9 of the Considerations).
The Committee's assessment of the factual circumstances of the case: The Committee noted that various State bodies were involved in the case, each of which acted in accordance with its powers and responsibilities: the State university, which announced the vacancy and then stopped the process of filling it; the Equality Ombudsman, who, at the request of the author, represented his interests in the competent authorities national courts; the Higher Education Appeals Board; the Labor Dispute Court; the Administrative Court and the Administrative Court of Appeal. With regard to the University, the Committee considered: The fact that he did not inform the author about the insufficiency of government funding measures to cover the costs of the adaptations necessary for the author to work in the position for which he applied became an obstacle to consultations and consideration of alternative adaptation measures. In other words, the possibility of conducting a dialogue in order to assess and strengthen the author's potential for permanent work as an associate professor was negated, since the vacancy filling process was terminated before any consultation and analysis of alternative adaptation measures (paragraph 8.7 of the Considerations).
The lack of dialogue, according to the Committee on the Rights of Persons with Disabilities, influenced the conduct of the trial, during which the authorities focused on studying the cost factor of sign language translation, without considering the possibility of taking other adaptation measures. The Labor Dispute Court analyzed: the cost of sign language translation services in relation to the employer's ability to pay for them; the impact of the measures taken on the author's ability to perform functions in the mentioned position; the duration of the employment period; the impact of measures taken in the interests of the author on other persons with disabilities; and a number of public financing measures that could be used by the employer and employee. Having considered these aspects, the Labour Court concluded that these adaptation measures would be too expensive (paragraph 8.8 of the Considerations).
The Committee noted that the author had repeatedly intended to propose alternative adaptation measures to the university and the Ombudsman for Equality in the hope that this specialized State body would raise this issue in the courts. In this context, the Committee took note of the State party's statement that, in the author's case, significant funding measures were provided to facilitate his employment in the form of support through daily sign language translation and an annual salary subsidy. The Committee also stressed that, in the State party's view, although the decision of the Labour Court referred only to the above-mentioned public financing measures, this did not mean that there were no other financial security measures. However, the fact that the Equality Ombudsman did not raise this issue made it impossible for the Court to consider other funding measures. In making such a statement, the State party acknowledged the responsibility of the State authorities to properly inform the parties to the proceedings about the funding that could be provided to facilitate the author's employment. The Committee did not express an opinion on the outcome of a proper analysis of alternative adaptation measures and "other financial support measures". However, he considered that the participating authorities had not taken all possible measures to promote the realization of the right of persons with disabilities to work (paragraph 8.9 of the Considerations).
The Committee's conclusions: The decisions and actions of the State party's authorities have limited the possibility of selecting persons with disabilities for employment in positions requiring adaptation of the working environment to their needs. In particular, the Committee considered that the assessment by the Labour Court of the requested assistance and adaptation measures contributed to the denial of reasonable accommodation, which in fact led to the discriminatory removal of the author from employment in the position for which he applied, in violation of his rights under articles 5 and 27 of the Convention.