Combatting disability discrimination: A comparison of France and Great Britain

Abstract

This article examines disabled people’s employment in Great Britain and France. In both countries, they are far less likely to be employed than non-disabled people, but the gap is wider in Britain than in France. Possible explanations for the wider gap in Britain include weak enforcement mechanisms, judicial resistance and the lack of an institutional role for trade unions, resulting in an implementation gap; while the narrower gap in France may reflect the more proactive legislation, including its quota-levy scheme. We conclude that these explanations are not mutually exclusive, and we suggest that Britain might consider adopting some French provisions, thus tempering its voluntarist approach.

Keywords

Disability employment rates enforcement France Great Britain implementation gap judicial resistance quota-levy trade unions

Introduction

Employment is a mark of societal inclusion, but in many countries, including Britain and France, disabled people have a lower employment rate and a higher incidence of working on non-standard contracts and earning less than their non-disabled peers (Grammenos, 2013). France, however, has significantly higher rates of employment of disabled people than Britain. Why is this?

Despite some important differences, the two countries exhibit many similarities. Although France has a civil law system and Britain a common law system, both countries are committed to ensuring work for disabled people (Bertrand, 2013; DWP, 2015). Both are also (currently) covered by the disability provisions of the EU’s Employment Equality Framework Directive of 2000 and subscribe to its Disability Strategy 2010–2020 (European Commission, 2010).

Our objective is to consider possible explanations for the differing employment rates of disabled people in the two countries. To do so, we draw on official materials, statutes, handbooks, case law and legal commentaries. The analysis was carried out by French- and English-speaking researchers who were familiar with the equality context in both countries, and was supplemented by some expert interviews (five in France and four in the UK) to clarify law and public policy. The plan of this article is as follows. First, we present some comparative statistics, then discuss the form of the law and judicial resistance. Next, we turn to enforcement by the state, by individuals and by trade unions. We go on to consider labour market activation policies, before presenting our conclusions.

Statistics on disability and employment

Our data are taken from a pan-European survey, the EU Statistics on Income and Living Conditions (EU-SILC). We focus only on employment rates; though economic inequality and occupational segregation are important, they are beyond the scope of this article. EU-SILC defines a disabled person as one who reports that they are limited in the activities they usually do because of health problems lasting at least 6 months, and covers all individuals over the age of 16 living in private households (hence not institutions for those with impairments). It covers the whole UK, but we focus for the most part on Great Britain (that is England, Wales and Scotland), since disability law in Northern Ireland (which comprises only 3 percent of total UK population) is in some respects distinctive.

As Table 1 shows 46 percent of disabled people aged 20–64 are employed in the UK compared to 54 percent in France, and there is an employment gap of 34 percent between disabled and non-disabled people in the UK compared to 19 percent in France. Table 1 also differentiates by gender. Disabled women in both countries face a double disadvantage, with a lower employment rate than both non-disabled women and disabled men.

Table 1.

Employment rate (%) by disability and gender, 2012.

		Disabled	Not disabled	Total population
France	Total	53.6	72.6	69.1
	Female	51.3	69.0	65.6
	Male	56.2	76.3	72.8
UK	Total	45.9	80.1	74.4
	Female	44.6	75.3	69.9
	Male	47.4	84.9	79.1

Source: EU-SILC 2012 from Grammenos (2014).

Note: The employment rate is calculated by dividing the number of people aged 20-64 in employment by the total population of the same age group and gender (Grammenos, 2014).

Table 2 distinguishes between moderately and severely disabled people. These figures are also based on self-report; the possible answers were as follows: (1) yes, strongly limited; (2) yes, limited; and (3) no, not limited. These figures show that although moderately disabled people are more likely to be employed in the UK than in France, the reverse is true for severely disabled people.

Table 2.

Employment rate (%) by degree of disability, 2012.

	All	Moderate disability	Severe disability
UK	74.4	65.2	23.7
France	69.1	60.5	37.1

Sources: Priestley (2014: 5) and Meziani et al. (2014: 5).

As Table 3 shows, in both countries the employment rate for both disabled and non-disabled people peaks at 35–44 years. The employment rate of disabled people in the UK, however, is lower than that in France at all ages except 16–24, although the gap reduces in the 55–64 age group.

Table 3.

Employment rate (%) by disability and age, 2012.

	Persons with disabilities					All persons
Age	16–24	25–34	35–44	45–54	55–64	16–24	25–34	35–44	45–54	55–64
France	21.5	67.9	72.6	70.4	29.8	29.5	80.0	85.1	84.6	39.7
UK	29.5	50.0	53.1	51.1	36.8	44.3	80.0	80.1	82.9	60.5

Source: SILC 2012 from Grammenos (2014).

We use EU-SILC data because they are the only available statistics providing a cross-national comparison on the disability employment rate, but as noted above, they are based on self-report and the subjective view of respondents, who may inflate the incidence and severity of their health problem to rationalize labour force non-participation and the receipt of disability benefits. In an American study, however, Benitez-Silva et al. (2004) found that overall individuals’ evaluation of their disability was on average the same as that by the Social Security Administration: although many seemed to inflate their disability, a similar proportion did exactly the opposite. That study though was intra-country, and cross-country comparisons are more problematic, since self-report may be influenced by social and cultural factors and the benefit system (OECD, 2016). For example, Groot (2000) found that Danish and Swedish respondents tended to largely over-state their health, while Germans did the opposite.

Bearing in mind these limitations, the EU-SILC survey suggests that disabled people are more likely to be employed in France than in the UK irrespective of gender, and we now seek explanations for this variation.

Legal regimes

A possible explanation is the form of the law in the two countries. One form is ‘command and control’, which posits that a rational individual will try to avoid sanctions (Tyler and Blader, 2005), but this can engender resistance and adversarialism, with the unintended result of reduced employment outcomes for minority groups (Maroto and Pettinicchio, 2014). Another form is ‘self-regulation’, which posits that individuals internalize rules and choose to follow them without rewards and sanctions (Tyler and Blader, 2005), but the extent to which this is done will vary between organizations. A third form is intended to shape the law to ‘nudge’ employers to behave in a certain way; Thaler and Sunstein (2008: 9) argue that this combines libertarianism (as actors are free to choose), with paternalism (actors are influenced in a way that contributes to government goals), and claim immodestly that the deployment of ‘both incentives and nudges … can help solve many of society’s major problems’. Against this background, we examine the different legal approaches in the two countries.

The French quota-levy scheme

The French quota-levy scheme has no British parallel. Private sector companies and public authorities with 20 employees or more are obliged to include 6 percent of disabled people within their total workforce. The system was introduced in 1924 and specified 10 percent of the total workforce; this figure was reduced to 3 percent in 1957 (Romien, 2005) and raised to the current level in 1987.

The workers included in the quota are those who have obtained official recognition of their disability, known as reconnaissance de la qualité de travailleur handicapé (RQTH). This can be granted to those aged 16 and over with no upper age limit, for 1–5 years, on a renewable basis, and applies to employees and volunteers (Ferri and Lawson, 2016). Decisions are made by the Commission des Droits et de l’Autonomie des Personnes Handicapées (CDAPH) after advice from a multi-disciplinary team, although RQTH is granted automatically to those with an invalidity or occupational injury pension. In 2014, 95 percent of demands for recognition were accepted (Barhoumi and Chabanon, 2015: 12).

Those officially recognized are not obliged to inform the employer of their RQTH status but may wish to do so, for instance, to seek adjustments to their working conditions or workplace. Klarsfeld and Ng (2012: 315), however, maintain that employers ‘encourage workers to disclose hidden impairments, sometimes offering financial incentives’ in order to meet the quota.

To comply with the quota, employers can include disabled workers in sheltered employment or disabled independent workers who provide goods and services to them for up to half the quota (3 percent of their workforce). They can also include disabled trainees for up to 2 percent of the workforce. Another way that employers can meet the quota is to conclude an approved joint agreement setting out how they will promote the employment of disabled people. We return to these agreements below.

Employers who fail to fulfil their quota in full or in part must pay a levy to the Association de Gestion du Fonds pour l’Insertion Professionnelle des Personnes Handicapées (AGEFIPH), the body responsible for collecting the levy from private sector employers, or to the Fonds pour l’Insertion des Personnes Handicapées dans la Fonction Publique (FIPHFP), its public sector equivalent. The levy at the time of writing equates to 400 times the hourly minimum wage per ‘missing’ disabled employee for organizations with 20–199 employees, 500 times the hourly minimum wage for organizations with 501–749 employees and 600 times for organizations with 750 plus employees. Since 2009, where organizations have made no improvement in the proportion of disabled people, they employ directly or indirectly through contracting-out over a 3-year period, the levy is increased to 1500 times the hourly minimum wage per missing disabled employee. In 2012, 22 percent of private sector companies paid the full levy; 27 percent met the quota fully by directly employing disabled workers, 11 percent had an approved agreement, while 40 percent had at least one disabled employee and/or sub-contracted and/or paid the levy in part (AGEFIPH, 2015).

Waddington (2000) argues that the quota system is philosophically flawed: it assumes that only if employers are obliged to hire disabled workers (or pay a levy instead) will they do so, and that the protected group is inferior. Similarly, Sargeant et al. (2016) criticize quota systems for sending out mixed messages: on the one hand, the employment of disabled people is desirable, but on the other hand disabled people are unable to compete on equal terms. Furthermore, quota systems focus on the number of disabled people employed, rather than their skills and occupational position.

Waddington (2000: 41) admits, however, that quota schemes ‘are frequently popular with people with disabilities’, and Grammenos (2013: 5) points out that the six EU countries with the lowest activity gap between disabled and non-disabled people (Austria, Germany, France, Italy, Luxembourg and Slovenia) all have quotas. Furthermore, Fuchs (2014) says that according to available empirical data, quota systems lead to small net employment gains for disabled people, a point with which Sargeant et al. (2016: 14), when examining quota schemes in Italy and Russia, tentatively agree, saying that ‘quota systems may help to increase the participation of disabled people in the labour market’. Similarly, Lee and Lee (2016) found that mandatory employment quota systems had a limited employment effect in Korea and Japan.

Meziani et al. (2014) suggest that quota schemes could cause discrimination between disabled people, as the employer might be more willing to hire people with a minor impairment to meet the quota, instead of a more severely disabled person. Table 2, however, indicates that more severely disabled people are employed in France, where there is a quota-levy scheme, than in the UK where there is not.

The British public sector equality duty

Britain, unlike France, has a statutory Public Sector Equality Duty (PSED) under the Equality Act, 2010. The rationale is that the causes of discrimination and inequality are deeply rooted in societal structures and institutions, and positive duties change the focus from individual wrongdoing to concentrate on the organizations themselves, as they are in the best position to promote equality (Fredman, 2012). Under the PSED, public sector bodies have a general duty to give ‘due regard’ to three matters: first, the elimination of discrimination, harassment, victimization and ‘any other conduct’ prohibited by law; second, the advancement of ‘equality of opportunity between those who share a relevant protected characteristic and those who do not share it’; and third, the fostering of ‘good relations between those who share a relevant protected characteristic and those who do not’. Public sector bodies are required to publish annual information to demonstrate their compliance. Alongside the general duty are specific duties, which vary in England, Scotland and Wales, with England’s being the least prescriptive.

The PSED has a number of defects. First, the duty does not affect private bodies exercising purely private functions, whereas the French quota-levy scheme has no such limitation. Second, the duty lacks clarity. For instance, bodies covered by the general duty must have ‘due regard’ to the elimination of discrimination, but it is not clear what this means. Third, under the English regulations, organizations are not required to carry out monitoring or an equality impact assessment or consult with trade union equality representatives (unlike the equivalent Welsh and Scottish regulations). Fourth, the PSED is enforceable only by way of judicial review and does not give rise to any private law rights.

The PSED has been criticized by commentators of different political complexions. For instance, a government-commissioned review found that ‘in far too many cases we have uncovered useless bureaucratic practices which do nothing for equality’ (Government Equalities Office, 2013: 6), while Fredman (2011: 427) concludes that ‘without a duty to take action, the risk of proceduralism is difficult to overcome’.

Judicial resistance

A further potential explanation is that the variation in disabled people’s employment rates in France and Britain depends not only on the form of the law, but also on the extent to which there is judicial resistance and conservative judgments in the nation’s courts, so that the law fails to secure adequate outcomes for minorities (Maroto and Pettinicchio, 2014). Tokson (2015) argues that judges may be motivated to resist legal change as they develop biases in favour of the law they have repeatedly applied and justified, while Machura (2016) suggests that they may be tempted to support the powerful rather than the disadvantaged.

In Britain, there are examples of restrictive judicial interpretations of the legislation that make it very difficult for a disabled person to win a case, and here we give just two egregious examples: Quinlan v B&Q plc (1998) and London Borough of Lewisham v Malcolm (2008). In the former case, the Employment Appeal Tribunal held that Quinlan was not disabled as he could lift everyday objects, even though he could not lift the objects he was required to lift at his workplace. In the latter case, the House of Lords, by a majority, held that Malcolm’s comparator was a non-disabled person, not another disabled person. It took further legislation to obviate that judgment. Yet some judicial decisions have expanded the interpretation of British law. For instance, in Archibald v Fife Council (2004), the Supreme Court held that the duty to make a reasonable adjustment for a disabled person could extend to placing that person in a post of the same or a higher grade without a competitive interview. In Coleman v Atteridge Law (2007), an employment tribunal asked the European Court of Justice whether protection against discrimination should be extended to a carer of a disabled person, and this eventually resulted in associative discrimination being outlawed throughout the EU.

In France, there is far less opportunity for judicial resistance than in Great Britain, as the main avenue for individual enforcement in discrimination issues is not through the courts, but through the Défenseur du Droits (DDD), which is akin to a mediation body staffed by investigators who are not professional judges. The DDD investigates individual complaints of less favourable treatment, harassment, associative discrimination and failure by the employer to make a reasonable accommodation, and then makes a recommendation, albeit of a persuasive, not legally binding nature.

A complainant dissatisfied with the decision or recommendation (and the DDD resolves most complaints) can take their case, if in the private sector, to a labour court (Conseil de Prud’hommes), and in the public sector, to the administrative tribunal, and any individual can file a complaint with the crown prosecutor, the police or the senior examining magistrate of the crown court (Tribunal de Grande Instance). Unfortunately, there are no statistics which indicate how many disability discrimination cases are adjudicated by these bodies, but anecdotal evidence suggests only a small number.

Enforcement mechanisms

Stronger law will not necessarily lead to improved outcomes for minorities, what is also needed is stronger implementation ‘to give substantive effect to formal rights, reducing the likelihood of adverse treatment and promoting fairer workplaces’ (Dickens, 2012: 1). If enforcement mechanisms are weak, the law will be ‘like paper tigers, fierce in appearance, but missing in tooth and claw’ (Hepple, 2002: 238).

There are various forms of enforcement: first is state enforcement, which requires the state and its agencies to be adequately funded if law-breakers are to be successfully identified and punished. In addition, state agencies can encourage, but not require, employers to behave in certain ways, but if compliance is not forthcoming they can impose sanctions. Second, there is individual enforcement. Third, there is enforcement by trade unions. These can mediate the law directly by taking cases on behalf of members. They can also have an indirect effect on equality, through equality representatives and collective bargaining (Bacon and Hoque, 2012).

State enforcement

In Britain, a public agency, the Equality and Human Rights Commission (EHRC), has the power to conduct inquiries and formally investigate specific organizations and can issue an Unlawful Act Notice, which may include an action plan; there is a right of appeal to an appropriate court or tribunal. In addition, it can make agreements even if it has not conducted a formal investigation. It can also enforce the specific duties of the PSED by issuing a non-compliance notice.

Whatever the powers of the EHRC in theory, in practice they are weak. First, an Unlawful Act Notice or Non-Compliance Notice cannot be enforced by the EHRC itself and requires an application to the civil courts. Indeed, the EHRC favours agreements in lieu of investigations and has, to date, not issued any Non-Compliance Notices (EHRC, 2016a, 2016b). Second, its investigations are often general rather than organization-specific and lead to general recommendations, not sanctions (O’Brien, 2012). Third, these powers have been little used in the employment context. These enforcement failures may be partly because of budget cuts: its budget of £70 million per year when it was established in 2007 was reduced to £17.1 million per year in 2016–2017 (Pring, 2016).

In France, there are labour inspectors who are authorized to investigate unlawful acts in matters of discrimination under the Criminal Code. There are no statistics available, however, on their activities in respect of disability employment. French state agencies are also involved in enforcing the quota-levy scheme. As shown above, if an organization does not fulfil its quota, it must pay a levy and the higher the levy, the more a rational organization will choose to fulfil its quota and thus meet the aim of French public policy. Increasingly French employers do meet the quota: the percentage of companies directly employing disabled people rose from 60 percent in 2005 (DARES, 2007) to 78 percent in 2014 (DARES, 2016a).

Individual enforcement

In both countries, disabled people have the right to not be discriminated against in employment. Importantly, the law in both countries requires the employer to make ‘reasonable adjustments’ or to take ‘appropriate measures’, to quote the British and French phrases respectively, in order to enable disabled people to have access to or retain employment, unless the adjustment/measure would impose a disproportionate burden on the employer. These rights, however, have to be enforced by individuals.

In Britain, this is through employment tribunals, but this enforcement mechanism has flaws. First, from 2013 individuals had to pay fees of £1200, until the Supreme Court in 2017 held that the fee system was inconsistent with access to justice. Indeed, the government admitted that fees had had ‘a greater financial impact on people with disabilities compared with people who do not have a disability’ (Ministry of Justice, 2017: 50).

Second, British claimants have to marshal the evidence and navigate legal complexities, including an adversarial procedure with cross-examination at its heart. Also, they first have to establish that they are disabled, meeting a legal definition which is narrower and more complex than the French definition. Indeed, Lawson (2011: 362) maintains that ‘defendants often deliberately choose to challenge the disabled status of a claimant as a strategy for … pressurising them into settling or withdrawing the case’. Moreover, perhaps unsurprisingly, in view of the intricacy of the legislation, British claimants are unlikely to win their case: in the 3 months from April 2015 just 5 percent of disability discrimination claims were successful (Ministry of Justice, 2016). Finally, even when disabled claimants do succeed, the remedy is compensation, not reinstatement, even if an employment tribunal has held that they have lost their job as a result of disability discrimination. Moreover, such compensation is normally unlikely to be substantial: the median award was £11,309 in 2015–2016 (Clark, 2016).

In contrast, the French DDD has always been free to claimants, and if claimants do not accept a DDD recommendation, they can go to the Conseil de Prud’hommes; previously, there was a fee of only €35 but now this is also free. Also, it is arguable that the DDD’s investigative approach is less stressful for French claimants than the adversarial approach in British employment tribunals. Furthermore, whereas British claimants have a poor success rate, 80 percent of the cases investigated by the DDD are resolved (DDD, 2014). Moreover, the DDD, unlike many British private mediation bodies, publishes its decisions, including an examination of the complaint in the light of the law, so norms are articulated.

Trade union enforcement

British trade unions support their disabled members through workplace casework and by providing legal representation (though not automatically) for those wanting to claim disability discrimination at an employment tribunal, although we have not found any statistics.

In addition, there are some 1400 trade union equality representatives in British workplaces (TUC, 2010) and their role is to encourage employers to improve equality policies and practices, offer independent advice on equality issues to employees, monitor company policies and practices and raise the profile of the equality agenda within their unions and workplaces. Bacon and Hoque (2012) found that over three-fifths of equality representatives reported having had a positive impact on their employer’s disability practices and were also more likely to report having more influence on disability policies than on any other equality strand.

Some British trade unions have also appointed ‘disability champions’, of which there are over 500. Bacon and Hoque (2015) found that 71 percent reported ‘a lot’ or ‘some’ influence on employer willingness to conduct disability audits of documents, buildings or procedures and 57 percent reported ‘a lot’ or ‘some’ influence on employer equal opportunities practices with regard to disability. In addition, one trade union, the Transport Salaried Staffs Association (TSSA), appointed some 80 neuro-diversity champions who achieved some success in influencing employer disability practices, for instance, obtaining workplace adjustments (Richards and Sang, 2016).

Importantly, however, union equality representatives, disability champions and neuro-diversity champions do not have a statutory right be consulted, to have paid time off to carry out their duties or to have office facilities, unlike other categories of British trade union representatives. Moreover, although the government initially funded TUC training for disability champions and TSSA support for its neuro-diversity champions, this funding has now been withdrawn.

In contrast, French trade unions, have a significant disability role enshrined in law. First, they have seats on the CDAPH, which as mentioned above is responsible for recognizing a person’s disabled status, and on the governing boards of the AGEFIPH and the FIPHFP, setting policy on the expenditure of the funds collected from the levies on employers who have not met the quota.

Second, staff representatives (délégues du personnel), who are in theory mandatory in firms of 11 employees or more, have a right to draw the attention of management to any breach of employees’ individual rights (droit des personnes), a broad notion encompassing employees’ physical and psychological well-being and ‘individual liberties’ at work. If no resolution is possible at the workplace, the Prud’hommes may hear the dispute (private sector only). In such cases, the judges may issue an order which could include requiring management to conduct an investigation with staff representatives. Third, most French trade unions help all individuals who wish to take a case (not just union members as in Britain).

Fourth, French unions have a role in collective bargaining through information and consultation bodies. This has a disability dimension because employers and trade unions have to negotiate annually on disability at enterprise level, and every 3 years, they have to negotiate on the subject at a sectoral level. Accordingly, French employee representatives can conclude joint agreements with the employer to promote the employment of disabled people. These spell out the ways in which the quota is to be met and/or how money that the employer would otherwise have to pay to AGEFIPHP/FIPHP is to be spent, but such enterprise agreements have to be approved by a state agency, the Directions Régionales des Entreprises, de la Concurrence, de la Consommation, du Travail et de l’Emploi (DIRRECTE). Examples include the agreements at Accor, Carrefour and Sodexo (International Labour Office, 2010) and more recently at Renault (2013). Agreements can also be made at national and sectoral level, in which event they have to be approved by the Délégation Générale à l’Emploi et à la Formation Professionnelle (DGEFP). A study found that such joint agreements promote the implementation of disability policies and also facilitate social dialogue between employers and trade unions, as disability is a unifying topic (DARES, 2016b).

Nevertheless, even though disabled people’s employment is a topic in negotiations, it is often marginal (Maggi-Germain, 2010). Furthermore, such collective agreements are uncommon: only 11 percent of companies signed such agreements in 2012 (AGEFIPH, 2015). In particular, small companies often find it difficult to dedicate human resources to such negotiations, although there is some evidence that this is a prerequisite for the implementation of a disability agreement (Maggi-Germain, 2010).

Moreover, even if there are joint agreements, they are not without shortcomings. First, they can be used primarily as a means to enhance the company’s brand, rather than to make significant advances in respect of the integration of disabled people into the workforce (Blatgé, 2010). Second, according to Barel and Fremeaux (2012), companies may adopt reactive strategies, for instance, employing disabled people directly or indirectly only to offset the payment of the levy as opposed to adopting proactive strategies, for instance, making the diversity dimension a key plank of their human resource management. Nevertheless, whatever their shortcomings in France, collective agreements are even rarer and less specific in Britain and, where they are found, as in local government, they are confined to equal opportunities clauses which include a reference to disability (EurWork, 2001).

Labour activation policies

As Kahn Freund (1969: 311) noted, ‘many people have something like a magic belief in the efficacy of the law in shaping human conduct and social relations. It is a superstition’. Similarly, Hepple (1992) submits that law is both too specific and too selective to deliver substantive equal rights. Therefore, part of the explanation for the higher employment rate of disabled people in France compared to the UK is not to be found in the law, but could be in labour activation policies, particularly training and the provision of aids aimed at increasing the supply of disabled employees.

In France, the budget for labour activation policies for disabled people comes from the levy and is ring-fenced and thus not subject to any government cuts, and the state agencies, AGEFIPH and FIPHFP, are responsible for redistributing the levy. In 2014, AGEFIPH spent more than €60 million on training disabled people, more than €100 million on employment integration including providing disabled people with advice on job searching, and more than €92 million on job retention, for instance, advising companies and providing finance for workplace adjustments (AGEFIPH, 2014). This entailed financial contributions to 71,277 work placements, 18,669 job retentions and 2,569 apprenticeship contracts in favour of disabled individuals (AGEFIPH, 2014).

In Britain too, grants can be provided to help disabled people obtain or stay in work, but such provision is fragmented. The main vehicle is the Access to Work scheme, which provides advice and financial support for disabled employees and their employers to implement alterations to the workplace, for instance, special equipment, fares to work if public transport cannot be used and disability awareness training. The most common type of adjustment is time-related or part-time work requests (William, 2016); in such instances, Access to Work may advise the employer how to implement these adjustments, but despite such involvement, adjustments are usually only slowly implemented (William, 2016).

In 2015–2016, 32,150 disabled people benefitted from Access to Work, and although its programme expenditure ‘is not routinely published’ it is known that in 2013–2014 this was £108 million (Clarke, 2016: 3). This compares poorly with the AGEFIPH budget. Moreover, in contrast to the ring-fenced money in France, British Access to Work grants are vulnerable to government cuts. For instance, in March 2015, the government announced changes to the scheme: a cap of £40,800 per disabled person, calculated at one and a half times annual salary, uprated annually (Clarke, 2016).

Access to Work, however, is not the only government-funded vehicle to support disabled people’s employment. The Work Choice programme also funds public, private and voluntary organizations to deliver work entry and in-work support, as does the Work Programme which covers all those unemployed, not just disabled people, and is delivered by a range of providers. Both these programmes are to be replaced by a Work and Health Programme, again using a range of providers and not solely targeted at disabled people.

In France, labour activation policies include public provision of sheltered employment. This is based on the premise that those with severe impairments are capable of economically valuable work but not in normal workplaces. In 2012, 118,211 disabled workers were employed in an Etablissement et Service d’Aides par le Travail (ESAT) with ‘a legal status similar to employees’ (European Parliament, 2015: 22) for people with one third or less work capacity loss. Arguably, sheltered employment permanently ‘ghettoizes’ disabled workers, as ‘there has been a notable lack of success in moving disabled workers to the open labour market’ (Waddington, 2000: 42), partly because of a lack of relevant training opportunities (Baret, 2013) and only 3 percent of those in ESATs move into the open market (European Parliament, 2015: 27). ESATs also find it difficult to reconcile their economic and socio-medical objectives (Baret, 2012).

In a partial move away from sheltered employment, French businesses can adapt part of their premises as Entreprises Adaptées, which provide semi-sheltered employment. Such adapted businesses employed 31,000 disabled people in 2014 (AGEFIPH, 2015).

In contrast to France, Britain has moved away from public sheltered employment; by 2013, it had closed or sold all government-owned Remploy factories, while its employment service, aimed at enabling disabled people to take up non-sheltered employment, was privatized (BBC, 2014). Remploy now focuses on a return-to-work service which helps disabled people become ‘work ready’, while simultaneously advising employers on how to recruit and retain disabled people.

Discussion and conclusion

We have focused on employment rates as a measure of disabled people’s (in)equality. Of course, there are other important measures, particularly the extent of occupational segregation and income levels, but they are beyond the scope of this article. Furthermore, we focus on industrial relations explanations, not on wider social factors such as disabled people’s access to education, public transport and adapted housing, although such factors have a mediating role with respect to disabled people’s employment (Blanc, 2009; Jacquinot, 2009; Levet, 2007).

We have noted that in both the United Kingdom and France, disabled people’s employment rate is significantly lower than for non-disabled people, but in France, the rate is higher than in the United Kingdom, although these statistics have limitations as discussed above. Against that background, we return to our research question and consider explanations for this difference, but because a counter-factual cannot be constructed, we can only indicate those explanations that we find the most plausible.

First, we considered whether the difference stems from the form of the law. As shown above, the key plank of the French approach is the quota-levy scheme and this seems to have some positive implementation effect, as evidenced by the growing number of employers directly employing disabled people, as the law nudges, but does not command French employers to behave in a certain way (Thaler and Sunstein, 2008). The British approach to ‘nudging’ is the PSED, but it is inadequate: it does not cover the private sector; its wording is ambiguous and there is no ‘carrot’ for employers, unlike in France. Accordingly, we think the form of the law is a plausible explanation for the differing disabled employment gap in the two countries.

Second, we considered judicial resistance, and showed how there are many more opportunities for resistance in Britain than in France, because whereas in Britain the main avenue for complainants is the courts, in France it is a non-judicial investigative body, the DDD. Yet while we have given examples of judicial resistance in Britain, there are examples of judicial decisions which actually advance the interpretation of disability legislation. Accordingly, we do not think judicial resistance is a plausible explanation for the differing employment gap in the two countries.

Third, enforcement provides another avenue for explanation: we have shown that in Britain there is an implementation gap as the EHRC has never applied sanctions for non-compliance, although empowered to do so (EHRC, 2016a), and individuals face problems bringing a case to an employment tribunal where they have to adopt an adversarial approach based on cross-examination and, in any event, are most unlikely to win. In contrast, French state agencies enforce the quota-levy scheme and individuals enforce their rights through a complaint to the DDD which investigates and makes a recommendation to the parties. As to trade union enforcement, although French trade unions have an institutionalized role in implementation, unlike their British counterparts, French collective agreements are uncommon and those that are concluded have shortcomings. Accordingly, whereas trade union enforcement does not offer a plausible explanation for France’s greater proportion of disabled people in employment compared to Great Britain’s, its mode of both state and individual enforcement may do.

Finally, we consider that labour activation policies are a plausible explanation: in France, the money from the levy is ring-fenced. In contrast, the British government has a fragmented approach to supporting disabled people’s employment, such funding is not ring-fenced and what information we have found suggests that there is significantly less money devoted to it than in France.

To summarize, the form of the law, enforcement mechanisms by the state or by individuals and labour activation policies are the most plausible explanations for disabled people’s higher rate of employment in France compared to Britain. We add that these factors are not mutually exclusive, and research must consider multiple explanations for the disadvantage of minority groups (Maroto and Pettinicchio, 2014).

In conclusion, and in the light of the finding that the six EU countries with the lowest activity gap between disabled and non-disabled people have quota schemes (Grammenos, 2013), we propose that further research should be undertaken to test these hypotheses and, in particular, to explore whether a quota-levy scheme on the French model could be used to enhance, not replace Britain’s current legislation, thus tempering its voluntarist approach.

Footnotes

Acknowledgements

We would like to thank the editor for all his help and encouragement and the referees for their useful comments.

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: The first two authors received no financial support for the research, authorship and/or publication of this article. The third received a grant from the FNEGE (Fondation Nationale pour l’Enseignement de la Gestion en Entreprise) for a month’s maintenance at the University of Greenwich under the mentorship of the first author, when she was a PhD student and when the research for this article commenced.

Author biographies

Susan Corby is Professor of Employment Relations at the University of Greenwich, United Kingdom.

Laura William is Senior Lecturer in Human Resource Management and Organizational Behaviour at the University of Greenwich, United Kingdom.

Sarah Richard is Lecturer in Human Resource Management and Organizational Behaviour at EM Strasbourg Business School, University of Strasbourg, France.

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