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Disability under Article 14 European Convention

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Last updated 23rd February, 2015 (part update 16th July 2019).

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.

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”:

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

In Glor v Switzerland (2009) the claimant was considered to be 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.

In G.N. v Italy (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.

In Kiyutin v Russia (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.

An example of a European Court of Human Rights case which was effectively about disability discrimination but was not decided under Article 14:

In Alajos Kiss v Hungary (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.

A UK Employment Appeal Tribunal accepted that disability is covered by Article 14 in A v London Borough of Hounslow (2001). When the issue comes before the UK courts now, it seems normally undisputed that disability is capable of falling within Article 14: eg Burnip v Birmingham City Council, Court of Appeal, 2012. 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. The court 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.

It remains possible there may be some health conditions that are outside Article 14 – eg would something temporary like flu be included?.

There is little doubt that stammering can fall within Article 14.

Boundaries of what falls within Article 14 – covering a ‘minor’ stammer?

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 the European Convention? At least, is it consistent where the discrimination is in an area covered by the Convention and so falling within Article 14.

There may be scope to argue that having a clinical stammer is some ‘other status’ within Article 14 whether or not its effects are “substantial” (more on this argument):

  • Under Article 14 of the European Convention, there need not be a ‘disability’, an impairment of function. It seems that a health condition can be enough, whether or not it is considered to have ‘significant’ effects on activities.
  • In Glor v Switzerland (2009) a ‘minor’ disability was held to be covered by Article 14, and to have been unjustifiably treated less favourably than more major disabilities. (On the facts of that case, though, the ‘minor’ disability – diabetes – may well have come within Equality Act 2010 anyway as its effects were masked by medication. However, that does not seem to have been a factor in the European Court decision.)