Disability Discrimination: treating two groups of workers with the same protected characteristic differently could amount to discrimination - VL (Case C-16/19)

The Advocate General in a preliminary ruling for the Court of Justice of the European Union (CJEU) has given an opinion that treating one group of disabled employees differently to another group of disabled employees could amount to a breach of Article 2 of The Equal Treatment Framework Directive (2000/78/EC). Although this opinion is not binding on the CJEU, if adopted it has the potential to establish a new type of comparison in discrimination law.

The employer, a Polish hospital, decided to pay a monthly allowance to employees who submitted a certificate attesting to a disability. The purpose was to show it had an increased number of disabled employees, so as to obtain a reduction in its contribution to a disability fund. A meeting was held with staff in which they were informed about the allowance which was then paid to employees who submitted a certificate after this meeting. However, employees who had submitted their certificate prior to this meeting, including the employee in this case, were denied payment of the allowance. Disabled workers were therefore treated differently depending on when they submitted their certificate.

The District Court in Krakow dismissed the employees’ action, holding that she was not entitled to the allowance and that the employer had not treated her differently on account of her disability, as under Polish law she was not treated less favourably than a non-disabled employee. The employee appealed and the Polish appellate court asked the CJEU to consider whether differing treatment of the situations of individuals within a group that shares the same protected characteristic, in this case disability, breached the principle of equal treatment.

The Advocate General decided that there was no direct discrimination in this case as there is no direct connection between the employer's measure and the protected characteristic. However, the practice could amount to indirect discrimination. It was indicated that in this case, “the criterion, although 'apparently neutral' (in that it does not expressly and directly refer to disability), places 'at a particular disadvantage' (the withholding of the allowance certainly fits that concept) 'persons having ... a particular disability' 'in comparison with other persons.” With regards to a comparator for the purposes of indirect discrimination, it was noted that the traditional interpretation of ‘other persons’ is to consider persons who do not have the protected characteristic. However, this interpretation is not binding and it was held that the comparator may also be a group of disabled persons.

The Advocate General concluded that the Directive should be interpreted as meaning that differing treatment of situations within a group defined by a protected characteristic (disability) may constitute a breach of the principle of equal treatment, namely indirect discrimination, under the following conditions:

1. the employer treats individual members of that group differently on the basis of an apparently neutral criterion;
2. that criterion, although apparently neutral, is inextricably related to the protected characteristic (in this case, disability);
3. that criterion cannot be objectively justified by a legitimate aim and the means of achieving that aim are not appropriate and necessary.'

In the UK, employment tribunals are obliged to interpret the Equality Act 2010, so as far as possible, in light of the wording and purpose of the EU Directives. Although this opinion is not binding on the CJEU, if the court adopts this conclusion, which it usually does, the interpretation of discrimination law throughout the European Union could be impacted. In any event, employers should ensure that they treat all employees consistently and fairly.