The Equality Act 2010 is the main anti-discrimination legislation for disabled people in the UK. However, the European Convention on Human Rights can help fill in some gaps. It is not affected by Brexit.
- The European Convention on Human Rights is more important in UK court cases than other international conventions, in that UK courts have specific duties under the Human Rights Act to give effect to it: below Human Rights Act.
- Those duties include a requirement on UK courts to interpret legislation such as the Equality Act consistently with the Convention where possible: below How is the European Convention enforced in the UK?
- The Convention is not affected by Brexit.
- The main anti-discrimination provision in the Convention is Article 14, which is in some ways wider and in some ways narrower than the Equality Act: below Non-discrimination under Article 14.
- I list below some ways in which the Convention may increase Equality Act protection.
Human Rights Act
The Human Rights Act 1998 (HRA) brought the European Convention on Human Rights (the Convention) into UK law. The HRA “brought rights home” so that Convention rights are enforced by the UK courts (to a very large extent), rather than so many cases having to be taken to the European Court of Human Rights in Strasbourg: Enforcement of European Convention and HRA 1998.
Because of the HRA it is much easier than with other international conventions for individuals to rely on Convention rights in the UK courts.
The effect of the Convention in the UK is not altered by Brexit. The UK remains a party to the Convention, and most importantly the Human Rights Act 1998 remains in place. The government is not proceeding with its Bill of Rights Bill which would have altered the position.
Non-discrimination under Article 14
Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Key points on Article 14 are:
Article 14: Disability is covered
Numerous cases have held that disability and indeed health status fall within Article 14, as an “other status”. Impairments seem to be covered whether or not they meet the EqA definition of disability. More generally “other status” is understood as very broad. See Disability under Article 14.
Article 14: Only applies within scope of another Convention right
It is important that Article 14 only applies if the situation falls within the “ambit” (ie scope) of another Convention right, though there need not be a breach of the other right. So it is not a general right against discrimination. For example:
- It is not clear how far Article 14 covers employment discrimination.
- Education is normally covered.
- Welfare benefits is another example of what is covered.
The scope of the Equality Act is both wider and narrower than that. For example welfare benefit regulations cannot be challenged under the EqA (except under the limited PSED), whereas the EqA clearly covers employment discrimination.
Article 14: “Discrimination” and “justification”
What counts as “discrimination” is wide, except that the “justification” defence is easier (often much easier) to satisfy than under the Equality Act. Discrimination can include direct and indirect discrimination, not creating appropriate exceptions for disabled people, and failing to make reasonable adjustments. However it is not discrimination if there is objective and reasonable justification for the difference in treatment etc, and courts allow the government etc an area of discretion (often large) in deciding what is justified. See What is ‘discrimination’ under Article 14 European Convention?
A UK court must interpret UK legislation in accordance with the Convention “so far as it is possible to do so”. This allows a UK court to depart from the unambiguous meaning of legislation, and indeed rewrite it, unless the change is inconsistent with a “fundamental feature” of the legislation.
If a regulation (but not an Act of Parliament) cannot be re-interpreted so as to comply with the Convention, the courts can normally disapply it.
Also it is possible to make a free-standing claim against a “public authority” that it has breached the Convention. Ultimately complaints can be taken to the Strasbourg court.
Where may Convention rights increase Equality Act protection?
Challenging exclusions from the EqA
Article 14 of the Convention has been successfully used to challenge the exclusion from the EqA of former members of the armed forces, and (in schools) of disabled children with a tendency to lash out.
T v Ministry of Defence, Employment Tribunal, 2021 (not a binding precedent)
An employment tribunal has held that under s.3 Human Rights Act, the Equality Act must be re-interpreted to permit a claim for disability discrimination which occurs after discharge from the armed forces. On the face of it the employment provisions of the Equality Act exclude disability discrimination claims by members of the armed forces, including former members. However the tribunal held that as regards former members, this exclusion is discrimination contrary to Article 14 of the Convention. It was unjustified because the purpose of the exclusion was to protect combat effectiveness, but that purpose no longer applies after someone has been discharged.
C & C v The Governing Body of a School, Upper Tribunal, 2018
The tribunal held that British regulations excluding a tendency to physical abuse from being a disability under Equality Act 2010 are in breach of Article 14, so far as they relate to education discrimination against children. The regulations should be re-interpreted or disapplied, so that an autistic child with a tendency to lash out is not excluded from claiming discrimination against a school.
Note: The case raises questions of whether other exclusions in Equality Act 2010 (Disability) Regulations 2010 (pdf) might also be challenged under the Convention, possibly even in employment cases. See my comment on the C & C case.
Challenges to other regulations
The Convention can be used to argue that other regulations passed by the government are discriminatory, whereas any challenge to these under the Equality Act would be through the weaker Public Sector Equality Duty (PSED). However this is a rather difficult, specialist area.
Burnip v Birmingham City Council, Court of Appeal, 2012
The ‘bedroom tax’ under UK housing benefit regulations was found to infringe Article 14 where a second bedroom was required by the overnight carer of a severely disabled person.
Note: Welfare benefits fall within Article 14 (above). However there are very many cases on them and it is a difficult area, particularly on ‘justification’.
LH Bishop v Commissioners of Revenue and Customs, First-tier Tribunal (Tax), 2013
There was held to be unjustified discrimination contrary to Article 14 where business owners who could not use a computer because of their disability were required to submit VAT returns online.
Apart from regulations, the Convention could also apply in other areas beyond the main provisions of the Equality Act, rather than having to rely on the PSED.
Relevance of individual’s circumstances in adjustments by service providers etc
The Human Rights Act and ECtHR decisions could help an argument that the reasonable adjustment duty on service providers, authorities providing public functions and education providers includes a duty to make ad hoc adjustments in response to the particular needs of a disabled individual, where reasonable: Ad hoc adjustment duty on service providers?>Human Rights Act and European Convention.
What is reasonable or justified?
The Convention could be relevant if, for example, a service provider argues that it is not a reasonable adjustment to offer someone who stammers an alternative to using the telephone, on the ground that the person can just get a friend or family member to phone for them. This is especially so in a financial matter. The person who stammers might argue that the option of using someone else is insufficient, given the Article 8 Convention right to respect for private and family life. See LH Bishop v HMRC discussed on Not having to rely on friends and family>Human rights arguments.
Discussed on the same link is Enver Şahin v Turkey (2018) where the European Court of Human Rights (ECtHR) emphasised the importance of personal autonomy in deciding what is a reasonable adjustment. In that case a university had failed to make reasonable adjustments to a building. The court held that the offer of a personal assistant to help with mobility was not sufficient on the facts, given the importance of personal autonomy which the court based on both Article 8 and the CRPD.
Convention rights can be relevant not only to reasonable adjustments but also, in a similar way, to the justification defence in the Equality Act.
Right to financial compensation
The Convention might give a right to financial compensation where UK law does not allow it, such as a claim by a pupil/student against a school. However one might not be able to claim that in an Equality Act claim. See Enforcement of European Convention and HRA 1998>Remedies and ‘just satisfaction’.
Coverage of stammer even if not within the EqA “disability” definition?
Article 14 of the Convention seems to cover health conditions generally, whether or not they have a long-term substantial effect on normal day-to-day activities. That should apply in a claim directly under Article 14 of the Convention (not covered on this website). However apart from regulations outside the EqA itself as in C & C above, it may be difficult to argue this affects the EqA definition of disability, and so claims under the EqA: Disability under Article 14 European Convention>Article 14: if a stammer etc is not a “disability” within the Equality Act.
Proposed change: Bill of Rights Bill
In June 2022 the government published a Bill which would make important changes by repealing and replacing the Human Rights Act: Bill of Rights Bill.
- Text of the European Convention on Human Rights (pdf, echr.coe.int)
- Persons with disabilities and the European Convention on Human Rights (pdf, echr.coe.int) – summaries of very many ECtHR decisions on disability.