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Disability under Article 14 European Convention

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Last updated 26th August 2022.

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”.

Article 14 does not mention disability. However, numerous decisions of the European Court of Human Rights (ECtHR) in Strasbourg have held that Article 14 covers disability and indeed other health conditions, within the words “or other status”. For example:

Kiyutin v Russia, ECtHR, 2011
The court held that a person’s “health status” – including in this case being HIV positive – was an “other status” within Article 14. There was unlawful discrimination where a government refused to grant a residence permit to those who were HIV positive.

Glor v Switzerland, ECtHR, 2009
The ECtHR held the applicant fell 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. The court held it was 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.

There are many more case examples below: Some ECtHR decisions on disability and Article 14.

Some UK cases on disability within 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 very many other cases, for example Burnip v Birmingham City Council, Court of Appeal, 2012. A more recent Supreme Court decision affirming that disability is covered (though the case was not itself on disability) is R (SC) v Secretary of State for Work and Pensions, 2021.

For two examples of Article 14 being used to extend disability rights under the Equality Act, see Human Rights Act 1998/ European Convention>Challenging exclusions from the EqA.

Disability as a “suspect ground” making discrimination harder to justify

The courts have held that where discrimination is on certain “suspect” grounds including disability, that is a factor which will tend to require a more intense assessment by the court of whether the difference in treatment etc was justified. But other factors are also relevant, and authorities are often allowed a substantial degree of discretion. See What is “discrimination” under Article 14 European Convention?>”Margin of appreciation”: Disability as a “suspect” ground.

“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, 2016 (para 76-79) and JD and A v United Kingdom, 2019 (para 82).

This seems similar to discrimination by association’ under the Equality Act 2010.

“Other status” is very wide generally

The Supreme Court has said that “status” in Article 14 is so wide that “the issue of ‘status’ is one which rarely troubles the European court”. See my summary of the Supreme Court’s discussion of this at R (SC) v Secretary of State for Work and Pensions>Identifiable characteristic or status. The point can be relevant in disability cases, where there may be discrimination on grounds of a “status” other than disability. For example:

T v Ministry of Defence, Employment Tribunal, 2021
The employment tribunal held it was a breach of Article 14 for the Equality Act to exclude ex-servicepersons from claiming for disability discrimination that happened after discharge from the armed forces. Apart from this exclusion being disability discrimination (compared with eg servicewomen allowed to claim for sex discrimination), the tribunal said this exclusion discriminated between ex-servicepersons and ex-employees of civilian employers on the basis of their “status” as ex-services rather than ex-civilian.

Article 14: if a stammer etc is not a “disability” within the Equality Act definition

In most cases the Equality Act only covers an impairment if it has a long-term substantial – ie more than minor or trivial – effect on one’s ability to carry out normal day-to-day activities (though “normal day-to-day activity” is very wide in employment claims). A stammer should very often be a “disability” within this Equality Act definition, or perceived disability may apply. But what if the stammer – or another impairment – is not within the Equality Act definition?

There seems little doubt that a stammer or other impairment does not need to have any particular “effect” to be an “other status” within Article 14 of the Convention. “Other status” includes a health status (Kiyutin v Russia), and generally is very wide (above).

Convention claim against a public authority

Therefore in a claim to a UK court against a public authority under s.7 HRA specifically for breach of Article 14, it should presumably be possible to rely on stammering or another health condition as an “other status” without having to show a substantial effect on normal day-to-day activities. However Article 14 claims under s.7 are an area for which (even more than usual) specialist advice is likely to be important, including on whether such a claim is a good idea generally, possible risk of costs, and whether it is better to focus just on any Equality Act claim which could arguably be brought. Also in a claim under Article 14 the court would of course apply Article 14 rather than the Equality Act. In particular:

  • it is easier for an authority to argue that measures are ‘justified’ under Article 14 than under the Equality Act, and
  • it may be disputed whether the case falls “within the ambit” of another Convention right. That is unlikely to be an issue in an education case for example, but is likely to be an area of dispute in an employment case.

Relevance of Article 14 to whether “disability” under the Equality Act?

What about whether the wide scope of health impairments covered by Article 14 is relevant in a claim under the Equality Act, which most claims will be? Here the tribunal or court applies the Equality Act (EqA) definition of disability. How far should that EqA definition be re-interpreted under s.3 HRA in the light of the Convention?

The only case I know of where the meaning of disability under the Equality Act (EqA) was argued to be wider because of the Convention is C & C v The Governing Body of a School, Upper Tribunal, 2018. The argument was successful here, but the case did not concern the definition of disability in the EqA itself. The tribunal held that regulations excluding a tendency to physical abuse from being a disability within the EqA had to be partially ‘read down’ (re-interpreted) or disapplied because they breached Article 14. The EqA itself cannot be disapplied by a court (see below on whether its definition of “disability” can be re-interpreted).

There seem to be two ways one might question whether the EqA definition of disability complies with the Convention, or should be interpreted more widely in the light of the Convention. One is whether the EqA definition draws unjustifiable distinctions between certain groups of people, similar to T v Ministry of Defence. Another is whether the EqA definition should be interpreted more widely to better reflect the wider (in some respects) anti-discrimination protection given by Article 14.

I’m not aware of any cases discussing whether and how far Article 14 might affect the definition of “disability” in the Equality Act. So far as I know, people have not argued it. Some tentative thoughts on this:

  • Even if a UK court considered the EqA definition of disability should be wider in the light of Article 14, it may well be reluctant to “re-interpret” the Equality Act to depart from basic features of the EqA “disability” definition set by Parliament, such as the requirement for a “more than minor or trivial” effect. They may see this as a “fundamental feature” of the legislation – though the courts have been willing to move a considerable distance from the EqA “disability” wording to comply with EU law, as regards normal day-to-day activities. Current (2022) political push-back on human rights law is in the background.
  • Most EqA cases relate to employment, and there is uncertainty as to how far employment falls within the ambit of the Convention.
  • It might be argued that the Equality Act needs to draw lines somewhere as to what it does and doesn’t cover. There are Article 14 cases on justifying “bright line” rules, which I haven’t gone into.

The Convention applies most obviously to discrimination by the state, eg a maintained school or perhaps a public sector employer. However it seems that 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.

Some ECtHR decisions on disability and Article 14

Lárusson v Iceland, ECtHR, 2022
The ECtHR in Strasbourg rejected a claim by a wheelchair user that failure to make two buildings in his municipality accessible was a breach of Article 14. The reasonable accommodation duty applied, but had not been breached given the state’s wide “margin of appreciation” (ie discretion), and what it had done towards making public buildings accessible.

Toplak and Mrak v Slovenia, ECtHR, 2021
The two applicants were wheelchair users. They claimed to the Strasbourg court that their local voting facilities were not sufficiently accessible. The ECtHR held that although the reasonable accommodation duty applied, their claims should be rejected on the facts.

G. L. v Italy, ECtHR, 2020
A child with non-verbal autism was provided with no specialist assistance in her first two years at primary school, apart from what her parents paid for. The ECtHR held there was a failure to make reasonable accommodation, in breach of Article 14.

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 applicant. The applicant in this case was a mother arguing that the ‘bedroom tax’ was discriminatory because of her daughter’s disability. The claim failed on “justification”.

Guberina v Croatia, ECtHR, 2016
The ECtHR held that failure to grant the applicant a tax exemption was disability discrimination contrary to Article 14. Tax authorities had failed to take account of the specific needs of his profoundly disabled child when they refused to grant an exemption.

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 applicant 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 ECtHR 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
The ECtHR held that a person’s “health status” – including in this case being HIV positive – was an “other status” 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 ECtHR held the applicant fell 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. Subjecting him to a tax for not performing military service was held to be discrimination contrary to Article 14. 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:

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.

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