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Disability under Article 14 European Convention

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Last updated 10th March, 2020.

This page discusses disability as a prohibited ground for discrimination under Article 14 of the European Convention on Human Rights. For Article 14 in general, see the main European Convention page.

Summary

Disability falls within Article 14

Article 14 covers “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.”

Disability is not mentioned in Article 14. However, the European Court of Human Rights has held that Article 14 covers disabilities and various health conditions, within the words “or other status”:

JD and A v United Kingdom, ECtHR, 2019
The Court said (at para 82) it had already held that “a person’s health status, including disability and various health impairments, fall within the term ‘other status’ in the text of Article 14 of the Convention…”. The disability need not be that of the claimant. The claimant in this case was a mother arguing that the ‘bedroom tax’ was discriminatory because of her daughter’s disability.

Çam v Turkey, ECtHR, 2016
A young woman passed the entrance exam for a music school but was rejected because of her blindness. The court held there was a breach of Article 14. The school was for specially gifted students, but the claimant had shown she was by passing the entrance exam. The school had made no attempt to consider reasonable adjustments.

IB v Greece, ECtHR, 2013
The court found it was unlawful discrimination contrary to Article 14 to dismiss an employee because of his colleagues’ fears about him being HIV positive.

Kiyutin v Russia, ECtHR, 2011
HIV positive status was held to fall within Article 14. There was unlawful discrimination where a Government refused to grant a residence permit to those who were HIV positive.

G.N. v Italy, ECtHR, 2009
Unjustified difference in treatment of those with haemophilia as opposed to thalassemia (two genetic conditions) was held to breach Article 14. The case concerned compensation for people (or their heirs) who had received infected blood transfusions.

Glor v Switzerland, ECtHR, 2009
The claimant was considered to fall within Article 14 where he had a “minor” disability, namely diabetes. He had been barred from military service since he needed regular injections for the diabetes. It was held to be discrimination contrary to Article 14 to subject him to a tax for not performing military service. The tax was not imposed on those with a more major disability.

A European Court of Human Rights case which was effectively about disability discrimination but was not decided under Article 14 is:

Alajos Kiss v Hungary, ECtHR, 2010
The court overturned a Hungarian blanket provision which denied voting rights to mentally disabled people under partial guardianship. The case was decided under Article 3 of Protocol 1 (free elections), rather than Article 14.

As to UK cases, the Employment Appeal Tribunal accepted that disability is covered by Article 14 in A v London Borough of Hounslow, 2001. The UK courts have also accepted it in numerous other cases, eg Burnip v Birmingham City Council, Court of Appeal, 2012, and a tax tribunal in LH Bishop v Commissioners of Revenue and Customs, 2013. By way of example, a 2018 decision on the Equality Act:

C & C v The Governing Body of a School, Upper Tribunal, 2018
Regulations say that a tendency to physical abuse cannot be a disability under Equality Act 2010. It had therefore been held that an autistic child with a tendency to lash out could not claim under the EqA when he was excluded from school. However the Upper Tribunal held that this regulation is incompatible with Article 14 of the European Convention as regards education discrimination against children. The regulation came nowhere near striking a fair balance between the rights of children such as this one and the interests of the community.

Thus there is little doubt that stammering can fall within Article 14.

‘Discrimination by association’ – if someone else has the disability

The ECtHR has held that discrimination based on disability of the claimant’s child is covered by Article 14: Guberina v Croatia (bailii.org) 2016 (para 76-79) and JD and A v United Kingdom, 2019. This seems similar to discrimination by association’ under the Equality Act 2010.

Does Article 14 cover a ‘minor’ stammer? Is that useful under Equality Act 2010?

In most cases the Equality Act only covers an impairment if it has a substantial (ie more than minor or trivial) effect on normal day-to-day activities. Is this consistent with Article 14 of the European Convention, if the discrimination is in an area covered by the Convention?

As discussed below, the argument is more likely to be relevant in education cases than in employment ones.

‘Stammering’ as an “other status” within Article 14 of the Convention

There is scope to argue that having a what would clinically be diagnosed as a stammer is some ‘other status’ within Article 14 whether or not its effects on normal day-to-day activities are “substantial”:

  • Under Article 14 there need not be a ‘disability’, an impairment of function. It seems that a health condition can be an “other status”, whether or not it is considered to have ‘significant’ effects on particular activities.
  • One could argue it makes more sense to say that having ‘a stammer’ is a “status”, rather than saying that only ‘an impairment which has a more than minor or trivial effect in normal day-to-day activities’ is a “status”.
  • In Glor v Switzerland (2009) the ECtHR held that a “minor” disability was covered by Article 14, and that the claimant was unjustifiably treated less favourably than those with more major disabilities. (On the facts of that case, though, the “minor” disability – diabetes – may have come within Equality Act 2010 anyway, depending for example on what its effects without medication would have been. However, its effects without medication do not seem to have been a factor in the ECtHR’s decision.)
  • There are a lot more cases on “other status” which should ideally be considered, and which I haven’t necessarily. However I’m not aware of anything which says that it is wrong to include ‘any stammer’ as a “status”.

Relevance in Equality Act cases?

Is the above useful in arguing an Equality Act case? The only case I’m aware of in which the meaning of disability under the Equality Act was argued to be wider because of the Convention is C & C v The Governing Body of a School, Upper Tribunal, 2018. Here the argument was successful, but it did not concern the definition of disability in the Act itself. The tribunal held that regulations excluding a tendency to physical abuse from being a disability within the Equality Act had to be partially ‘read down’ or disapplied because they breached the Convention.

What challenges might there be in arguing that the definition of ‘disability’ in the Equality Act should be interpreted more widely than it would otherwise be because of the Convention? They include the following:

  • Depending on the type of case, it may be disputed whether the case falls “within the ambit” of another Convention right:
  • There may be dispute on whether the discrimination by the employer or university etc is ‘justified’ within the Convention, even if it would not be ‘justified’ or (for an adjustment) would be ‘reasonable’ under the Equality Act test. Under the Convention, does the justification offered only need to be “manifestly without reasonable foundation” or are “very weighty reasons” needed, or something else? Another approach might be to argue that the distinction made by the UK in what is and isn’t protected by the Equality Act is not “justified”.
  • A UK court cannot override the Equality Act itself, but may adopt a ‘strained interpretation’ if need be to make the Act compliant: Enforcement of European Convention and HRA 1998>Claims by others. Depending on the facts, Equality Act wording such as “substantial” is fairly ambiguous and may be open to re-interpretation. (Apart from the Equality Act, against a ‘public authority’ a claim under s.7 Human Rights Act may be possible).
  • The Convention applies most obviously to discrimination by the State, eg a maintained school or perhaps a public sector employer. However it seems the State also has an obligation to protect against discrimination by private sector companies and bodies: What is ‘discrimination’ under Article 14 European Convention?>Obligation on States to secure non-discrimination.

Most disability discrimination cases relate to employment. Perhaps the challenge of persuading a tribunal that these fall within Article 8 (above) is seen as too difficult at the moment. Also, arguing for a wider meaning of disability may not be so important for stammering; in all the more recent cases on stammering I know of, the tribunal held that the claimant’s stammer was a ‘disability’. Even so, on the courts’ current approach under the Equality Act definition of ‘disability’, it will depend on the facts of the case and the evidence.

20th anniversary of stammeringlaw, 1999-2019