The Equality Act 2010 is the main anti-discrimination legislation for disabled people in the UK. However, the European Convention on Human Rights (ECHR) may help fill in some gaps. It is not affected by Brexit.
Human Rights Act
The Human Rights Act 1998 brought the European Convention on Human Rights into UK law. The Act “brought rights home” so that Convention rights are enforced by the UK courts (to a 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.
This means it is much easier than with most international conventions for individuals to rely on their Convention rights in the UK courts.
The role of the European Convention on Human Rights in the UK is not affected by Brexit. The UK remains a party to the Convention, and at present the Human Rights Act 1988 remains in place. An Independent Human Rights Act Review (gov.uk) began in late 2020, but the review is proceeding on the basis that the UK will remain a signatory to the Convention: ECHR departure not on agenda, says rights review chair (lawgazette.co.uk), Jan 2021.
Article 14: Non-discrimination
Article 14 of the Convention says that the enjoyment of the rights and freedoms set forth in the Convention must be secured without discrimination “on any ground such as” sex, race etc “or other status”. Key points on Article 14 are:
Coverage of disability
Numerous cases have held that a person’s health status, including disability and various health impairments, fall within Article 14. See Disability under Article 14.
Only within the scope of another Convention right
Article 14 only applies in a situation which falls within the ‘ambit’ (i.e. scope) of another Convention right. So this is not a general right against discrimination. For example:
- It is unclear how far employment discrimination is covered.
- However discrimination in education for example, whether school or university, is likely to be covered by Article 14.
- Welfare benefits are covered by Article 14, and there have been many cases how the Article applies to them.
‘Discrimination’ and ‘justification’
The concept of ‘discrimination’ is wide. It can include indirect discrimination, not creating proper exceptions to cater for disabled people, and reasonable adjustments. However the State has a defence if it shows ‘justification’. See What is ‘discrimination’ under Article 14 European Convention?
Under the Human Rights Act 1998, European Convention rights can be directly enforced in UK courts against a ‘public authority’. Also for a claim against anyone, including a private sector company, a UK court must wherever possible interpret UK legislation such as the Equality Act in accordance with the Convention. UK regulations which cannot be re-interpreted can usually be disapplied by a UK court, though it is different for primary legislation. See Enforcement of European Convention and HRA 1998.
Even without Article 14, disability discrimination may be a breach of the Convention. For examples, see Scope of European Convention: Using rights other than Article 14.
Where may Convention rights increase Equality Act protection?
What is reasonable or justified?
The Convention should 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. 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 Human rights and provision of services>Offering an alternative to the telephone.
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.
Challenges to regulations
The Convention can be used to challenge regulations passed by the government, whereas any challenge to these under the Equality Act would be through the weaker Public Sector Equality Duty (PSED). On using the Convention to challenge regulations, see:
- What is ‘discrimination’ under Article 14 European Convention?>Treating difference appropriately: Thlimmenos; and
- Enforcement of European Convention and HRA 1998>Regulations.
The first example below is regulations (not relevant to stammering) which exclude certain conditions from the Equality Act definition of ‘disability’:
C & C v The Governing Body of a School, Upper Tribunal, 2018
The tribunal held that 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 the 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.
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, but there are many cases on them and it is a difficult area.
LH Bishop v Commissioners of Revenue and Customs, First-tier Tribunal (Tax), 2013
There was held to be unjustified discrimination under 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 European Convention could apply in other areas beyond the main provisions of the Equality Act, rather than having to rely on the PSED.
Right to financial compensation
The Convention might possibly give a right to financial compensation where UK law does not appear to allow it, such as a claim by a pupil/student against a school. See Enforcement of European Convention and HRA 1998>Remedies and ‘just satisfaction’.
Coverage of stammer even if it is only ‘minor’?
The Convention may contribute to an argument that discrimination is unlawful even if a stammer is only ‘minor’ or ‘trivial’, at least in areas such as education where the Convention more clearly applies. However this is a difficult area. See Disability under Article 14 European Convention>Does Article 14 cover a ‘minor’ stammer? Is that useful under Equality Act 2010?
- Text of the European Convention on Human Rights (pdf, echr.coe.int);
- European Court of Human Rights case law database (HUDOC)
- For web links generally on stammering and disability discrimination see the links page.