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What is ‘discrimination’ under Article 14 European Convention?

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Last updated 12th March 2020.

This page gives a broad outline of what is seen as ‘discrimination’ under Article 14 of the European Convention on Human Rights. For Article 14 in general, see the main European Convention page.

Basic meaning of discrimination

“Discrimination” has its own meaning in Article 14 of the Convention, and thus in the Human Rights Act 1998. It means broadly “treating differently, without an objective and reasonable justification, persons in analogous, or relevantly similar, situations” (quote from Kiyutin v Russia). However ‘discrimination’ under Article 14 also includes:

However two vital points which place boundaries on Article 14 are:

For example:

Housing benefit can be reduced if one has an ‘extra’ bedroom. The courts have assessed how far this ‘bedroom tax’ is justified under Article 14 – if for example the bedroom is used by a disabled person’s carer, or the accommodation is specially adapted for a disabled person’s needs. Below Treating difference appropriately: Thlimmenos.

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. Below Treating difference appropriately: Thlimmenos.

There was held to be a breach of Article 14 where without justification higher education institutions failed to adjust teaching methods or buildings to be disability-accessible. Below Reasonable adjustments.

Treating difference appropriately: Thlimmenos

‘Discrimination’ within Article 14 of the Convention has been held to include treating significantly different situations in the same way, without justification. Not only should like situations be treated alike, but different situations should be treated differently. Both the ECtHR and the UK courts have applied this to failure to take account of the different needs of disabled people.

Thlimmenos v Greece (bailii.org), 2000, European Court of Human Rights (ECtHR)
The ECtHR held that Article 14 is not limited to cases where a State treats differently persons in analogous situations without providing an objective and reasonable justification. Article 14 “is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different” (para 44 of the judgment).

In this case the claimant was barred by Greek law from becoming a chartered accountant because he had been convicted of a “serious crime”. He had refused to wear a military uniform and was therefore guilty of insubordination. However he had refused because he was a Jehovah’s witness. He argued successfully that a distinction should have been made between offences committed exclusively because of a religious belief and other offences.

JD and A v United Kingdom, ECtHR
The claimant cared full-time for her adult daughter who had severe disabilities. They had specially adapted accommodation. Her housing benefit was reduced because of an ‘extra’ bedroom (the ‘bedroom tax’). It would have been highly undesirable for the claimant to have to move. The court held this was potentially “indirect discrimination” under Article 1 (though the court seemed not to distinguish Thlimmenos discrimination from ‘Indirect discrimination’ below). However the UK government was able to justify it because of safeguards as to when Discretionary Housing Payments would be granted. (Another claimant who was a victim of domestic violence did succeed in showing unjustified discrimination.)
Note: on this case see also Justification below.

LH Bishop v Commissioners of Revenue and Customs, First-tier Tribunal (Tax), 2013.
The tribunal held there was a Thlimmenos discrimination under Article 14 where businesses were required to submit VAT returns online, without appropriate exemptions for people who because of disability (or for certain other reasons) were unable to use a computer.
Note: Also the case seems relevant to whether people who stammer should be expected to use family or friends to speak for them.

Burnip v Birmingham City Council, Court of Appeal, 2012.
The court found that UK housing benefit rules (the ‘bedroom tax’) infringed Article 14. The rules did not allow for the fact that in some cases a person’s disability would mean they needed an extra bedroom, eg for a carer. The Court of Appeal accepted that Thlimmenos applied. The housing benefit rules failed to reflect the different needs of disabled people, and the court decided this was not justified. The court held that Thlimmenos was not barred from applying by the fact that the case involved a positive obligation to allocate resources.

AM (Somalia) v Entry Clearance Officer (bailii.org), Court of Appeal 2009
The claimant was a citizen of Somalia. He married a woman already settled in the UK. She was a trained accountant but not in employment; she was disabled and the state benefits upon which she relied included disability living allowance. An application for the husband to join his wife in the UK was rejected on the ground that they did not satisfy an immigration rule requiring that the parties will be able to maintain themselves and any dependants adequately without recourse to public funds. The court held there was discrimination on grounds of disability within Thlimmenos. However the claim was unsuccessful because the failure to treat disabled people differently was justified.

Another case on challenging regulations – regarding the definition of ‘disability’ under the Equality Act – is C & C v The Governing Body of a School which was decided as an example of ‘Indirect discrimination’ (below).

One book comments that both the Strasbourg court and the UK courts have been slow to find breaches of Article 14 based on Thlimmenos (Human Rights Practice para 14.019, Sweet & Maxwell, April 2018). Accordingly many claims made on this basis fail.

Relationship of Thlimmenos with reasonable adjustments

The Thlimmenos principle applies generally to grounds of discrimination covered by Article 14 (eg sex, race, “other status”). However its effect in relation to disability discrimination has marked similarities with the duty to make reasonable adjustments – at least as regards adjusting a provision, criterion or practice as opposed to a physical building for example. Like the Thlimmenos principle, the reasonable adjustment duty may apply where there is a general rule but special provision should be made for disabled people.

However so far as I am aware, cases decided under Thlimmenos tend to be where there is a general law which fails to make special provision for disabled people (though that may not be a requirement, and indeed in LH Bishop the challenge was to a notification by HMRC under the regulations rather than against the regulations themselves). Contrast the ECtHR cases on reasonable adjustments (below) for disabled students, where the possible adjustments related to things such as teaching methods and physical buildings.

Indirect discrimination

‘Discrimination’ within Article 14 of the Convention has also been held to include indirect discrimination. A policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory, regardless of whether the policy or measure is specifically aimed at that group (eg para 85 of the judgment in JD and A v United Kingdom, 2019).

DH v Czech Republic (bailii.org), 2007, European Court of Human Rights (ECtHR)
This case concerned Roma children being shunted into ‘special’ schools for those with learning difficulties. The ECtHR confirmed that a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a racial or ethnic group. Intent was not required. The court also talked about shifting the burden of proof: where the claimant established a rebuttable presumption that the effect of a measure or practice was discriminatory, the burden shifted to the State to show that the difference in treatment is not discriminatory.

A judge in the UK Court of Appeal has commented that the actual facts of DH might more accurately be seen as direct discrimination through stereotyping, rather than as indirect discrimination. However, the formula adopted by the ECtHR in the DH case was capable of encompassing traditional concepts of indirect discrimination, and the formula had been repeated in subsequent ECtHR cases, such as Opuz v Turkey (Elias LJ at para 40, AM (Somalia) v Entry Clearance Officer (bailii.org), 2009).

A case on the Equality Act 2010 that was treated by the tribunal as “indirect discrimination” (the tribunal did not consider it necessary to consider Thlimennos discrimination above):

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.

Suggested distinction between Thlimennos and indirect discrimination

In AM (Somalia) v Entry Clearance Officer (bailii.org) (2009) Elias LJ in the Court of Appeal (from para 34) discussed what he saw as the difference between the Thlimmenos type of situation (treating different situations differently) and traditional ‘indirect discrimination’. It is not clear whether the ECtHR would adopt the same analysis. (Note in any event it is not necessarily important to distinguish what type of discrimination something is: Court of Appeal in R (MA and Ors) v Secretary of State for Work and Pensions (bailii.org), Feb 2014, particularly para 46). As I understand the judgment of Elias J in the AM (Somalia) case:

Suggested distinction: Indirect discrimination

In traditional indirect discrimination (above), an apparently neutral rule/practice adversely affects a particular group, and may be unlawful if unjustified. Elias LJ sees this is an application of the principle that like situations must be treated alike (somewhat conterintuitive, but see para 41 of his judgment). The rule as a whole is suspect, and it is the rule as a whole that must be justified. If it is not justified, it may not be possible to apply the rule to anyone.

Example: An employer insists that employees be full-time. This requirement disproportionately has an adverse effect on women because they are more likely to have childcare responsibilities. Assuming the employer’s insistence on full-timers is not justified in the circumstances, it will therefore be indirect discrimination against women. However, it may then not be possible for the employer to apply the rule at all – it may be direct discrimination against men with childcare responsibilities to allow part-time working only for women with childcare responsibilities. .

Suggested distinction: Thlimmenos discrimination

When it comes to treating difference appropriately within Thlimmenos (above), as explained by Elias LJ the rule as a whole may serve a legitimate function and be justifiable in most circumstances. However there is a failure to create a special rule for people such as the claimant. The special rule may take the form of an exemption to the general rule. In considering justification, the issue is not whether the rule as a whole is justified, but whether the failure to draw the distinction is justified. Claims may be for a form of indirect discrimination, in that the special rule may be sought for a characteristic related to the protected status (eg in Thlimmenos a special rule for pacifists, rather than religion itself).

Example: The housing benefit rules setting out how many bedrooms a household is taken to need may well be justifiable for most families. However, a special rule is required for some people with a disability as in the Burnip case, for example if an overnight carer is needed.

In JD and A v United Kingdom (2019) on welfare benefit regulations, probably a case on Thlimmenos discrimination, the ECtHR said in deciding on justification the court must consider the compatibility of the system with Article 14, rather than just the individual facts or circumstances of the particular claimants or of others who are or might be affected. This may present an extra challenge if one is arguing that legal regulations are unjustified discrimination.

Reasonable adjustments

More recent ECtHR cases (Enver Şahin v Turkey and Çam v Turkey below) seem to confirm that discrimination under Article 14 includes an obligation to make reasonable adjustments, or “reasonable accommodation” as the ECtHR calls it. This is so at least as regards education, to which both these cases relate. However the duty to make reasonable adjustments under Article 14 is likely to extend well beyond that. The two ECtHR decisions refer to the CRPD under which denial of reasonable accommodation as a type of disability discrimination generally.

These ECtHR decisions quote from the CRPD definition of reasonable accommodation: “‘Reasonable accommodation’ means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”. The ECtHR says it is for national authorities (which may well include national courts) to define the reasonable accommodation. However it is “important that those authorities take great care with the choices they make in this sphere, in view of the impact of those choices on persons with disabilities, whose particular vulnerability cannot be ignored.”

See also above Relationship of Thlimmenos with reasonable adjustments.

Enver Şahin v Turkey, ECtHR, 2018
A university in Turkey had not made adjustments to a building to make it accessible for a paraplegic student. The Human Rights court in Strasbourg held this was discrimination contrary to Article 14. It said Article 14 included an obligation to make reasonable adjustments in this case. The offer of a personal assistant to help with mobility was not sufficient on the facts, given the importance of personal autonomy.

Çam v Turkey, ECtHR, 2016
The ECtHR said that Article 14 should be read in the light of the CRPD obligation to make reasonable accommodation. A blind applicant had been rejected by a specialist music college with no attempt to consider reasonable adjustments. There was a breach of Article 14.

Justification

There is no breach of Article 14 if justification can be shown. The justification must be objective and reasonable. It must pursue a “legitimate aim” and there must be a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (para 83 of the judgment in JD and A v United Kingdom, ECtHR, 2019). The second part of this test includes a requirement that the measure must strike a fair balance between the rights and freedoms of the individual and the general interest, having regard to the requirements of a democratic society.

An important question is whether the court can test the proposed justification fairly robustly, or whether it can only consider whether the justification is “manifestly without reasonable foundation”. See below ‘Margin of appreciation’ and need for “very weighty reasons”?

In deciding justification, it is relevant (but not conclusive) whether the aim could have been achieved through other means which have less impact on the fundamental right. For example:

Glor v Switzerland, ECtHR, 2009
The claimant was turned down for military service due to his diabetes, but was nevertheless taxed for not performing military service. The court held there was unlawful discrimination. The court questionned why he could not be given a less physically demanding role within the armed forces, so that he did not have to pay the tax. Civilian service was another possibility.

There are some further points on justification above at Suggested distinction between Thlimennos and indirect discrimination.

Justification: ‘Margin of appreciation’ and need for “very weighty reasons”?

The State enjoys a “margin of appreciation” in assessing how far it is justified to treat people differently on grounds of disability, or (more often) to treat significantly different situations in the same way. The margin of appreciation means basically the State’s ‘range of discretion’ in deciding what is justified – or how robustly can the court assess justification? The scope of this margin will vary according to the circumstances.

However there is considerable uncertainty on how robustly the courts can test justification under Article 14. In summary:

  • There are decisions especially from the UK Supreme Court saying that at least in welfare benefit cases the test is whether the justification is “manifestly without reasonable foundation” (known as MWRF to its friends).
  • However there is recent authority from the ECtHR in Strasbourg (October 2019) that normally “very weighty reasons” will be needed to justify disability discrimination, including as regards welfare benefits.
  • Also some UK cases have held that when assessing whether a fair balance of interests has been struck, the court can perform its own assessment without being limited by the MWRF test. However at least for welfare benefits, the UK Supreme Court said (in May 2019) that this is wrong.
  • It remains to be seen how the courts resolve this!

To go though this in a bit more detail:

Part of the justification test is whether a fair balance been struck between the rights of the individual and the interests of the community. One view, taken in various cases such as C & C v The Governing Body of a School (2018), has been that the court itself should decide whether a fair balance was struck, although the court might pay significant respect to the balance favoured by those responsible for the measure. The court should limit its consideration of other aspects of the justification test to whether the State’s arguments were “manifestly without reasonable foundation” but – on this view – the court should apply a more robust test to the question of fair balance.

However in R (DA & others) v Secretary of State for Work and Pensions (bailii.org), May 2019, the Supreme Court held by a majority that this view (outlined at para 61 of the judgment) is wrong, at least in justifying what would otherwise be the discriminatory effect of a rule on entitlement to welfare benefits. Lord Wilson said at para 65 that the sole question is whether it is “manifestly without reasonable foundation”. He said “Let there be no future doubt about it.” There are summaries of the judgment at Supreme Court upholds revised benefit cap: it was not ‘manifestly without reasonable foundation’ to introduce it (11kbw.com) and Press summary (pdf, supremecourt.uk).

But then, in October 2019, the European Court of Human Rights (ECtHR) in Strasbourg issued its judgment in JD and A v United Kingdom, concerning disability and sex discrimination claims relating to UK welfare benefits. The disability discrimination claim failed. However the court said that in the context of Article 14 with A1PI (which includes discriminatory welfare benefits) the “manifestly without reasonable foundation” test only applies to transitional measures designed to correct historic inequalities, such as correcting inequality in pension ages. Otherwise, said the ECtHR, the margin of appreciation for States to establish different legal treatment for people with disabilities is considerably reduced, and such treatment would require “very weighty reasons” to be justified. The ECtHR cited its decision in Glor.

How all this pans out in the UK courts remains to be seen. Will be Supreme Court be willing to change its view on welfare benefits? – see comment at Alex Ewing: “Bedroom tax” unlawful – Strasbourg Court (ukhumanrightsblog.com). In any event, outside the area of welfare benefits UK courts may feel encouraged to apply a more robust justification test, given what the Strasbourg court said about “very weighty reasons” being required to justify disability discrimination.

Also a UK court may sometimes test justification more rigorously than would the ECtHR in Strasbourg. See for example the dissenting judgments of Lord Kerr (from about para 166) and Lady Hale (para 147) in R (DA & others) v Secretary of State for Work and Pensions (bailii.org), May 2019.

Justification: Some previous cases on “very weighty reasons” being required

In Kiyutin v Russia (2011) the ECtHR held that in the context of HIV positive status the State had a substantially narrower discretion and “very weighty reasons” were required. The court listed those suffering different treatment on account of their “mental faculties” (in Alajos Kiss, below) or “disability” (in Glor, below) as among similar ‘vulnerable groups’ which the court had identified in the past. Follow the link to the Kiyutin case for the full quote.

Alajos Kiss v Hungary (2010) was not actually an Article 14 discrimination case. However, the ECtHR applied similar principles in deciding that the State was not justified in barring from voting mentally disabled people who were under partial guardianship.

In Glor v Switzerland (2009), dealing diabetes which it called a “minor” disability, the ECtHR commented that requiring the claimant to pay a military service exemption tax after refusing him the possibility of performing military (or civilian) service could be seen as inconsistent with the need to combat discrimination against disabled people and to promote their full participation and integration in society. Accordingly the State’s margin of appreciation in setting a different legal treatment for disabled people was heavily reduced.

In 2018 a UK appeal tribunal found that at least in the case before it, disability did not require “very weighty reasons” to be put forward for justification: C & C v The Governing Body of a School>Justification: technical test. That may need to be reviewed in the light of the 2019 decision of the ECtHR in JD and A v United Kingdom. In any event though the appeal tribunal did find there was a breach of Article 14.

The UK Court of Appeal has said that particularly weighty reasons would not be required to justify treating disabled people the same as others, as opposed to treating then differently: AM (Somalia) v Entry Clearance Officer (lnk to bailii.org), 2009, paras 15-16 and para 61; and Burnip v Birmingham City Council, 2012. This would apply for Indirect discrimination and for Treating difference appropriately within Thlimmenos. However that is inconsistent with the ECtHR decision in JD and A v United Kingdom in 2019. It remains to be seen how this is resolved.

Analogous situation

Technically, before one gets on justification, a claimant must get over the hurdle of showing that the people treated differently from himself are in an ‘analogous situation’. However in the light of an analysis of decisions of the ECtHR in Strasbourg, the House of Lords (Baroness Hale with whom the rest of the court agreed) has suggested that:

“… unless there are very obvious relevant differences between the two situations, it is better to concentrate on the reasons for the difference in treatment and whether they amount to an objective and reasonable justification.”
AL (Serbia) v Secretary of State for the Home Department (bailii.org), House of Lords, 2008, at para 25.

Obligation on States to secure non-discrimination

It seems there is a wider obligation on States to secure non-discrimination. Among other things this may require national courts to secure proper remedies for acts of discrimination even by a private sector employer: García Mateos v Spain (hudoc.echr.coe.int), 2013, No. 38285/09, paragraphs 42-49 of judgment.

An example on Article 14 (discrimination) is IB v Greece, where the European Court of Justice held that the State was in breach by failing to protect the claimant’s private sphere against interference by his private sector employer:

IB v Greece, ECtHR, 2013
The court found it was unlawful discrimination contrary to Article 14 for the State to fail to protect an employee from dismissal because of his colleagues’ fears about him being HIV positive.


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