The European Court of Justice (‘ECJ’) in VL v Szpital Kliniczny has held that it is possible for direct discrimination to take place between differently disabled employee groups, where the groups are comparable and one group is treated less favourable than others. This is an approach that could be adopted in future English law cases.
- Case Facts
In this case the employees at the company in question submitted certificates on their disabilities with the company. In 2013 the company decided to bring in a new policy which meant that employees who submitted their disability certificate after a certain date in 2013, they were entitled to a disability allowance. In contrast, those employees who had submitted before the meeting date were not entitled to this allowance.
In typical direct discrimination cases, a non-disabled comparator is required to show that the disabled employee in question was treated less favourably than someone in a comparable situation without the disability.
The ECJ in this case said it be unjust to construe that the EC Directive governing direct discrimination meant to exclude circumstances where the comparator is another group of disabled employees. As such, in this case it was held that so long as the comparator was assessed in a specific and concrete manner then discrimination could occur in these circumstances and without the need for a non-disabled comparator.
Another factor in the ECJ’s ruling was that the employer here had not offered the opportunity to resubmit their disability certificate to those employees not receiving the allowance, in order that they could access the same benefits as the disabled group which filed their documentation after the meeting date in 2013. This meant that it could be construed as less favourable treatment.
As a side commentary, it was held that indirect discrimination may also occur in these circumstances. This could be upheld if the meeting date criteria in 2013 had the effect of treating one of the groups of disabilities less favourably than the other due to the nature of their disabilities. It was said this could potentially be argued because, in practice, those with more serious and visible illnesses needed to certify their disability with the company but those with less serious, less visible or less likely to need reasonable adjustments had a choice whether or not to certify their disability with the company. This may be harder to prove and distinguish than the direct discrimination above.
It is more important than ever to both document any adjustments and benefits given to disabled employees, and also to review these regularly in order to ensure there is no discrimination amongst different groupings of disabled employees. There will be different nuances to applying adjustments and benefits depending on the severity of disabilities, so a personalised approach is still recommended. However, it is important to ensure where comparable situations can be distinguished that there is not any discrimination between those two groups.