What is ‘discrimination’ under Article 14 European Convention?

This page outlines the different kinds of ‘discrimination’ under Article 14 of the European Convention on Human Rights. That includes ‘justification’ and the discretion the courts allow to authorities or indeed Parliament in deciding what is justified. For Article 14 more generally, see my main European Convention page.

Basic meaning of discrimination

In Article 14 “discrimination” has its own meaning, developed by the European Court of Human Rights (ECtHR) in Strasbourg. First, two important constraints on what is unlawful discrimination:

1. Under Article 14 the most important point in deciding whether there is unlawful discrimination – and where most cases probably fail – is the final part of the analysis, namely whether there is objective and reasonablejustification (below) for the discrimination.
   • What makes it harder for a claimant to argue discrimination is unjustified is that the courts allow the authorities (or Parliament etc) a “margin of appreciation” (below), ie a discretionary area of judgment. So to an extent, the decision is one for the authorities etc. As discussed below, this area of discretion can be wider or narrower depending on the circumstances.
   • Despite allowing this discretion, it can be seen from the examples below that there are numerous cases where the courts have accepted there was unlawful discrimination under Article 14.
2. A second important boundary on Article 14 is that the discrimination must be within the scope of another Convention right (separate page).

Discrimination under Article 14 may be because of disability, health status, or some other “status” which is interpreted very widely: see Disability under Article 14 European Convention (separate page).

Subject to those points, the ECtHR has said the following are discrimination under Article 14:

• Direct discrimination (below) – treating differently persons in analogous (below), or relevantly similar, situations, unless there is objective and reasonable justification to do so.
  • A common example is a law treating one group of people differently from another group, as laws very often do, and is fine if justified. However eg the Equality Act says disabled ex-servicemen and women cannot claim disability discrimination, whereas ex-servicewomen can claim sex discrimination, and the UK government did not even try to argue this was justified: below T v Ministry of Defence.
• Indirect discrimination (below) – where a policy or measure has disproportionately prejudicial effects on a particular group (though not specifically aimed at that group), if the policy/measure has no objective and reasonable justification.
  • For example, since there are many more female single parents than male, restricting child tax credit to two children per household disproportionately affects women, but it was justified: below R (SC) v Secretary of State for Work and Pensions.
• Thlimmenos discrimination (below) – not only should like situations be treated alike (direct discrimination), but different situations should be treated differently. So Article 14 includes failing to treat differently persons whose situations are significantly different, unless there is an objective and reasonable justification.
  • For example, a tax tribunal held this applied where businesses were required to submit VAT returns online, without appropriate exemptions for people who because of disability were unable to use a computer: below LH Bishop v Commissioners of Revenue and Customs.
• Reasonable accommodation (below) for disability, ie reasonable adjustments – understood as “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case”. Here the ECtHR is reading Article 14 in the light of the CRPD.
  • To date claims for reasonable accommodation under Article 14 have succeeded mainly in education cases, ranging from primary school to university. However it applies more generally. Below examples of ECtHR decisions on reasonable accommodation.

Direct discrimination

Direct discrimination is where there is “a difference in the treatment of persons in analogous (below), or relevantly similar, situations” which is not justified.

R (SC) v Secretary of State for Work and Pensions, Supreme Court, 2021
The issue was whether it was lawful under Article 14 to limit child tax credit to no more than two children in a household. The Supreme Court accepted that the legislation treated children differently depending on whether they were members of a household containing more than two children, or only one or two children. (There was also potential indirect sex discrimination against mothers, below). However the legislation did not breach Article 14 because limiting tax credits to two children was justified, bearing in mind the discretion to be allowed to Parliament.

An interesting example of provisions in the Equality Act itself being held to constitute direct discrimination, though not a binding precedent as it’s only an Employment Tribunal:

T v Ministry of Defence, Employment Tribunal, 2021
According to the wording of the Equality Act, neither current nor former members of the armed forces can claim for disability discrimination. Here a former servicewoman was claiming for discrimination which happened after she had been discharaged. The tribunal held that not allowing a former member to claim for disability discrimination was a breach of Article 14. It could be “discrimination … as between disabled ex-servicemen and women (who cannot bring discrimination claims on the basis of their protected characteristic) and non-disabled ex-servicemen and women (who can bring discrimination claims on the basis of other protected characteristics)”, in which case it would be discrimination because of disability. Alternatively it could be “discrimination between ex-servicemen and women and ex-employees of civilian employers on the basis of their status as ex-services rather than ex-civilian”. The relevant groups were analogous, and the differences were not justified. The Equality Act should be re-interpreted to remove the breach of Article 14.

Treating difference appropriately: Thlimmenos

Not only should like situations be treated alike, but different situations should be treated differently. Thlimmenos discrimination under Article 14 is “when States without an objective and reasonable justification fail to treat differently people whose situations are significantly different”. The courts have applied this to failure to take account of the different needs of disabled people:

Thlimmenos v Greece (bailii.org), European Court of Human Rights (ECtHR), 2000
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”. This was that he had refused to wear a military uniform and was therefore guilty of insubordination. However his refusal was 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.

LH Bishop v Commissioners of Revenue and Customs, First-tier Tribunal (Tax), 2013
The tribunal held there was 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: The case also seems relevant as 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 of Appeal 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 need 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.
Note: There have however been many, many later cases on when welfare benefit rules do and don’t fall foul of human rights law.

In deciding whether a state has failed to “treat differently people whose situations are significantly different”, the ECtHR has said that “a certain threshold is required in order for the Court to find that the difference in circumstances is significant. For this threshold to be reached, a measure must produce a particularly prejudicial impact on certain persons as a result of a protected ground, attaching to their situation and in light of the ground of discrimination invoked” (eg Toplak and Mrak v Slovenia, 2021).

One book comments that both the ECtHR in Strasbourg and the UK courts have been slow to find breaches of Article 14 based on Thlimmenos (Human Rights Practice para 14.019, Sweet & Maxwell, February 2022). Accordingly many claims made on this basis fail.

As regards how Thlimmenos discrimination compares with reasonable adjustments and traditional indirect discrimination, see below Relationship of Thlimmenos with reasonable adjustments and How is Thlimmenos discrimination different from traditional indirect discrimination?

Indirect discrimination

Indirect discrimination within Article 14 is where a general policy or measure has disproportionately prejudicial effects on a particular group (notwithstanding that it is not specifically aimed at that group) if the policy/measure has no “objective and reasonable” justification, ie if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised”. This was set out for example in the SC case:

R (SC) v Secretary of State for Work and Pensions, Supreme Court, 2021
The issue was whether it was lawful under Article 14 to limit child tax credit to no more than two children in a household. As well as potentially being direct discrimination (above) against children in larger households, the Supreme Court accepted that this limit could be indirect discrimination against women. About 90% of single parents were women, so female parents were more likely to be affected by tax credit being limited in this way. However the legislation did not breach Article 14 because limiting tax credits to two children was justified, bearing in mind the discretion to be allowed to Parliament.

A case on the Equality Act 2010 that was apparently treated by the tribunal as “indirect discrimination”, though it might be seen as direct discrimination:

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 (EqA). According to previous cases, this meant 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 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. The regulation should be either re-interpreted or disapplied.

The tribunal said that given its findings, there was no need to consider Thlimennos discrimination (above).

Reasonable adjustments

ECtHR cases confirm that disability discrimination under Article 14 includes a duty to make “reasonable accommodation”, or reasonable adjustments as we call it in the UK.

There have been successful Article 14 claims for reasonable accommodation in the education field, from primary through to higher education (eg G.L., Enver Şahin, Çam below). However the duty clearly extends more widely, within the ambit of other Convention rights. Outside the education field, ECtHR cases – where the duty was held to apply albeit there was no breach on the facts – have included voting facilities (Toplak, below), and accessibility of buildings for social/cultural activities if they affect the applicant’s life sufficiently to fall within Article 8 (Lárusson, below). The ECtHR bases the duty of reasonable accommodation particularly on that duty in the CRPD, so it commonly recites the relevant CRPD provision, eg on participation in political or cultural life.

ECtHR decisions say that Article 14 must be read in the light of the CRPD requirement for reasonable accommodation, understood as “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case” – which people with disabilities are entitled to expect in order to ensure “the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”. Some threads from ECtHR decisions on this:

• The state, eg relevant national authorities, have a “margin of appreciation” (below) – ie to an extent it is up to them – as to what reasonable accommodation if any should be provided. In reasonable accommodation cases the ECtHR seems only occasionally (eg G.L. below) to recite that “very weighty reasons” are required to justify disability discrimination.
• Linked with that, the ECtHR says it is not the ECtHR’s task to define the “reasonable accommodation” that should be made. National authorities are better placed than it to do so.
• However at least in education cases (eg G.L., Enver Şahin), the ECtHR has often talked of importance of the authorities doing an individualised assessment, or looking at that person’s real needs. I suggest this may well also apply in non-education cases where it is not an adjustment for disabled people generally (such as work to make buildings accessible, or using voting machines in elections).
• In cases on education and voting facilities the ECtHR has also talked of authorities needing to take “great care” or to be “particularly careful” with their choices in this sphere. The ECtHR does not seem to have said this in the context of making buildings physically accessible, but otherwise it may be something the ECtHR will generally expect. ECtHR decisions commonly review how far the authorities and national courts have properly weighed up the possibility of making the reasonable accommodation (any disproportionate or undue burden).
• The ECtHR said in one case that even if the applicants did encounter certain problems accessing voting facilities, “these did not appear to have produced a particularly prejudicial impact on them and been such as to have reached the threshold of discrimination”: Toplak and Mrak v Slovenia>2015 referendum. So there is evidently a threshold as to whether the applicant has been sufficiently prejudiced by the lack of reasonable accommodation.

It is evident that the ECtHR assesses reasonable adjustments significantly less rigorously than British courts do under the Equality Act, assuming that Act applies. Under the EqA a British court will itself assess what adjustments it is reasonable for the authority etc to have to make. However the ECtHR seem to take an individualised approach where appropriate, whereas the approach of British courts on this as regards provision of services and public functions is somewhat unclear: Ad hoc adjustment duty on service providers?

Some ECtHR decisions on reasonable accommodation

Lárusson v Iceland, ECtHR, 2022
The ECtHR rejected a claim by a wheelchair user that failure to make two buildings in his municipality accessible was a breach of Article 14. On a positive note, the ECtHR said this was an exceptional case where his lack of access to public buildings affected his life sufficiently to fall within the ambit of Article 8 (private life). Therefore Article 14 did apply. However given the state’s wide “margin of appreciation”, ie discretion, and what it had done towards making public buildings accessible (it had prioritised educational and sports facilities), the court could not say that the state (Iceland) had done too little to make public buildings accessible.
Note: My page on that case also links to Glaisen v Switzerland, 2019, where, in contrast, failure to make a particular cinema accessible was held not even to fall within the ambit of Article 8, so Article 14 did not apply at all.

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. Their claims for reasonable accommodation under Article 14 and a similar provision failed. For a 2015 referendum, the physical premises were accessible, and any problems with access or the arrangements inside did not produce a particularly prejudicial impact on the applicants. By the time of elections in 2019, the first applicant’s disability was such that he could not mark his own ballot paper. However the court held the authorities were not obliged to use voting machines so that he could vote without needing an assistant.

G. L. v Italy, ECtHR, 2020
A child with non-verbal autism was provided with no specialist assistance in at least 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. The Italian authorities had prioritised support for a different condition which they considered more serious. However the ECtHR considered that in the circumstances (Italy’s inclusive schooling model, and case law of the Italian courts) any budgetary restrictions should affect educational provision in an identical manner for both disabled and non-disabled pupils. The authorities had not done enough to consider the claimant’s needs and possible solutions.
Note: My page on that case also links to Stoian v Romania, 2019, where, in contrast, accessibility failures in schools were held not to breach Article 14, on the facts.

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 ECtHR held this was discrimination contrary to Article 14. The court said Article 14 includes an obligation to make reasonable accommodation. The offer of a personal assistant to help with mobility was not sufficient on the facts, given the importance of personal autonomy. There had been no individualised assessment of the claimant’s actual situation.

Çam v Turkey, ECtHR, 2016
The ECtHR held 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.

See also below Relationship of Thlimmenos with reasonable adjustments.

Justification

There is a breach of Article 14 if the difference of treatment etc has “no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised” (R (SC) v Secretary of State for Work and Pensions, Supreme Court, 2021).

What is very important though is the degree of discretion the court allows to the government or Parliament etc. See below “Margin of appreciation”.

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 ECtHR 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.

Justification: “Margin of appreciation”

In the UK this is also called the “discretionary area of judgment” allowed to the authority, or to Parliament etc. The question is how intensely or critically do courts assess whether a measure is justified. How much discretion does the court allow to the body that treated the claimant differently etc, as to whether it was justified in doing so?

It depends on the circumstances what degree of discretion the courts allow. The courts have used phrases such as “very weighty reasons” being required for justification in some cases, or have accepted in some cases that a measure is justified unless it is “manifestly without reasonable foundation”. Those might sound like two opposite ends of a scale. However as discussed below there is actually a more nuanced multi-factorial test.

The UK courts aim to apply the same margin of appreciation as the ECtHR in Strasbourg would apply in the particular case:

• As its own decisions, the ECtHR in Strasbourg says, “The contracting state enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and the background.” (Carson v United Kingdom quoted in R (SC) v Secretary of State for Work and Pensions, Supreme Court, 2021).
• The UK Supreme Court has confirmed that the UK courts should seek to apply the same margin of appreciation as the ECtHR would do, bearing in mind the circumstances of the particular case (R (Elan-Cane) v Secretary of State for the Home Department (bailii.org), 2021, paragraphs 68-109).

So how wide is this margin of appreciation in a particular case? For the UK courts at least, this was clarified by the Supreme Court in R (SC) v Secretary of State for Work and Pensions>Justification: Manifestly without reasonable foundation? There the Supreme Court said out its interpretation of the ECtHR’s approach. The Supreme Court said that phrases like “very weighty reasons” being required for discrimination on “suspect” grounds (including disability), and measures of economic and social policy being justified unless “manifestly without reasonable foundation”, should not be seen as mechanical rules. Rather, said the Supreme Court, the ECtHR generally adopts a more nuanced, flexible approach:

99. … It is more useful to think of there being a range of factors which tend to heighten, or lower, the intensity of review. In any given case, a number of these factors may be present, possibly pulling in different directions, and the court has to take them all into account in order to make an overall assessment. The case law indicates, however, that some factors have greater weight than others.
R (SC) v Secretary of State for Work and Pensions, Supreme Court, 2021. My emphasis.

Accordingly the different factors should not be seen as mutually exclusive but may apply together. For example the Supreme Court said it appeared from ECtHR case law “that in cases involving ‘suspect’ grounds in the field of welfare benefits and pensions, the determinative factor has generally been whether ‘very weighty reasons’ have been shown, but that the [ECtHR] has taken account of the wide margin generally applicable in that field when making that assessment”. More generally relevant factors include:

1. “Suspect” grounds: This is a particularly important factor. If the difference of treatment is on certain grounds which are regarded as especially serious, then in principle a strict test of justification is called for. The ECtHR has talked of “very weighty reasons” being required here. As well as sex and religion for example, these “suspect” grounds include disability (below Disability as a “suspect” ground). An exception is point 4 below.
2. Economic and social strategy: Another repeated principle, sometimes alongside a statement that “very weighty reasons” must be shown, is that a wide margin is usually allowed to the state when it comes to general measures of economic or social strategy. This is often expressed as respecting the legislature’s policy choice unless it is ‘manifestly without reasonable foundation’”, abbreviated as MWRF. However, rather than seeing this as a binary, mechanical test which is either passed or not, a more flexible approach would give appropriate respect to the assessment of democratically accountable institutions while also taking appropriate account of such other factors as may be relevant.
3. The width of the margin of appreciation can be affected to a considerable extent by the existence, or absence, of common standards among the contracting states. (For example in Toplak and Mrak v Slovenia, on reasonable adjustments, the lack of common standards on using voting machines was an important reason why Slovenia was not required to use them in 2019 elections.)
4. A wide margin of appreciation is in principle available, even where there is differential treatment based on one of the “suspect” grounds, where the state is taking steps to eliminate a historical inequality over a transitional period in pace with changes in social attitudes.
5. There may be a wide variety of other factors which bear on the width of the margin of appreciation in particular circumstances. This includes for example the impact of the measure on the best interests of children.

More: in R (SC) v Secretary of State for Work and Pensions>Justification: Manifestly without reasonable foundation?

“Margin of appreciation”: Disability as a “suspect” ground

The following are some previous cases where disability or similar was found to be a “suspect” ground requiring a more intense assessment by the court of whether the difference in treatment was justified – and so less discretion for the body whose decision was being reviewed. Cases have often expressed this in terms of “very weighty reasons” being required for the difference in treatment on grounds of disability. However the UK Supreme Court has since interpreted that more as an important factor to be taken into account in deciding the intensity of the review by the court: above Justification: “Margin of appreciation”.

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. The court said “….if a restriction on fundamental rights applies to a particularly vulnerable group in society, who have suffered considerable discrimination in the past, such as the mentally disabled, then the State’s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question…”.

In Glor v Switzerland, 2009, dealing with diabetes which it called a “minor” disability, the ECtHR said 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 “considerably reduced”.

In the UK, the Supreme Court in R (SC) v Secretary of State for Work and Pensions, 2021, at para 111-112, confirmed that disability is a “suspect” ground.

Analogous situation

Technically, before one gets to 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 Strasbourg court 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.

Technical note: Relationship of Thlimmenos with reasonable adjustments

The Thlimmenos principle (above) 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 (above) – at least as regards adjusting a provision, criterion or practice as opposed to a physical building. 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 (above), where the possible adjustments related to things such as teaching methods, support in class, and physical buildings.

Technical note: How is Thlimmenos discrimination different from traditional indirect discrimination?

It has been said (AM (Somalia) v Entry Clearance Officer) that with traditional indirect discrimination (above) the claimant alleges that the government etc could be expected to adopt a different rule which does not have the adverse effect, whereas with Thlimmenos discrimination (above) the claimant accepts that the rule itself may serve a legitimate function and be capable of justification in most circumstances but contends that a different rule should be adopted for the claimant and those in a similar situation. It has also been said (by Lady Hale in R (DA) v Secretary of State for Work and Pensions) that in traditional indirect discrimination it is the measure itself, rather than its discriminatory impact, which has to be justified.

There is discussion of this at R (Vincent) v Secretary of State for Work and Pensions (bailii.org), 2020 at para 17-24, where the High Court says that in certain cases, depending on what is deemed necessary to redress the alleged discrimination, the focus of the justification may be the same whether viewed as indirect or Thlimmenos discrimination.