Article 14 of the European Convention on Human Rights (non-discrimination) applies if the situation is within the scope of another Convention right. In particular, disability discrimination can be within the scope of Article 8 (respect for private life) but other rights are also important. For article 14 generally and the context, see main European Convention page.
- Article 14, the provision in the European Convention which bans discrimination, only applies to situations which fall within the ‘ambit’ of another Convention Right, ie within the scope of another right.
- Many situations related to disabilty, including employment discrimination, potentially fall within the scope of Article 8, which covers respect to private and family life.
- There are also numerous other Convention rights within which disability discrimination may fall so that Article 14 can apply. These include rights covering social security, education, and a fair trial.
Article 14 and the ‘ambit’ of other Convention rights
Article 14 (non-discrimination) can apply if the facts complained of fall within the ‘ambit’ of the other Convention right – in other words within the ‘scope’ of the other right. There does not have to be a breach of the other right (though there may be: see below Using rights other than Article 14).
Therefore Article 14 effectively extends the reach of other Convention rights. But also Article 14 is not a freestanding right against discrimination. It only applies in combination with a substantive right under one of the other Articles of the Convention.
Accordingly it is not clear that Article 14 gives a general right against non-discrimination in employment for example as there is not a Convention right on employment generally – though employment sitations may often fall within the ambit of Article 8 (private life). As regards education, there is a Convention right covering education (see Protocol 1, Article 2 – below), so discrimination against pupils in the field of education is likely to be covered by Article 14.
This page lists below some rights which may be of particular relevance to disability, including perhaps to stammering. See also full text of rights (link to Schedule 1 of the HRA, on legislation.gov.uk).
Note: Protocol No. 12 (external link) extends the Convention’s coverage of discrimination for those countries which have signed up to the Protocol. It seems that the UK government currently has no plans to do so.
Private and family life under Article 8, including employment cases
Article 8 covers respect for private and family life. There are indications that disability discrimination (and various other forms of discrimination) will sometimes, and perhaps very often, fall within the ambit of Article 8. That includes disability discrimination as regards employment. Where a situation is within the ambit of Article 8, the non-discrimination rules of Article 14 will apply.
Article 8 says that, subject to exceptions, “everyone has the right to respect for his private and family life, his home and his correspondence.” This is wide-ranging, including for example the right to express one’s identity and to form and keep social relationships. (Also Article 12 gives a right to marry and found a family, according to national laws.)
Some examples where discrimination has been held to be within the ambit of Article 8:
Boyraz v Turkey (link to ECtHR), ECtHR, December 2014
A woman was not allowed to take up a job as a security offer, on the basis it was not something a woman could do. This was held to be within the ambit of of Article 8, and it was unlawful discrimination contrary to Article 14.
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.
Kiyutin v Russia, ECtHR, March 2011
There was held to be unlawful discrimination where a Government refused to grant a residence permit to those who were HIV positive.
Glor v Switzerland , ECtHR, April 2009
The applicant was found unfit to military service due to a disability but nevertheless had to pay a military service exemption tax. The case was found to fall within the scope of Article 8, so that Article 14 applied.
In Glor v Switzerland, part of the reasoning for the disability discrimination in that case fell within the ambit of Article 8 was the existence of a European and universal consensus on the necessity of protecting disabled people from discriminatory treatment. The court referred here to the UN Convention. The court said also it had previously acknowledged several times that private life within Article 8 includes a person’s physical integrity.
This reasoning, and the cases above, indicate that it may not be difficult for disability discrimination in employment situations, and in many other situations, to fall within the ambit of Article 8.
In Britain, the EAT held in A v London Borough of Hounslow (2001) that Article 8 and Article 1 of the First Protocol (possessions), below, did not cover the right to be employed, or not to have a contract of employment terminated. However, this as decided without the benefit of more recent decisions of the Strasboug court, and would need to be reconsidered now.
A further example of the Convention applying to employment is that Article 6 (fair trial) can sometimes give a right to be legally represented in a disciplinary hearing.
Other examples of employment situations which the European Court of Human Rights has held to fall within the Convention, for example within the ambit of article 8 (private and family life) are Sidabras v Lithuania (2006) where ex-KGB personnel were excluded from a wide range of occupations, or in Kyriakides v Cyprus (2008) where it was held that a dismissal may in some instances seriously interfere with the private life of an individual.
Article 8 independently
Article 8 also has potential, independently of Article 14, to give rights to disabled people. Under Article 8 the State may sometimes even be obliged to take positive steps in connection with disability (rather than just avoid interference).
An example of an unsuccessful disability claim is Pretty v UK (link to bailii.org), where the European Court of Human Rights found it justifiable to retain the ban on assisted suicide where a person with motor neurone disease was unable to take her own life.
Social security and tax: ‘Property’ under Protocol 1, Article 1 (‘A1P1’)
A1P1 gives a right to peaceful enjoyment of possessions, subject to exceptions. It is important in relation to discrimination because it has been held that taxation and national social security benefits systems are within this Article’s “ambit”, and are therefore subject to the anti-discrimination rules of Article 14. On social security, see Human rights advance – all benefits are ‘possessions’ (link to cpag.org.uk), 2005.
R (RJM) v Secretary of State For Work and Pensions (link to bailii.org), House of Lords, 2008
Article 14 was held to apply to disability premium in the UK. However, the claim failed because it was held to be justified to discriminate against homeless people by providing they were not entitled to disability premium.
Burnip v Birmingham City Council, Court of Appeal, 2012.
UK housing benefit rules were found to infringe Article 14. The parties had accepted that housing benefit fell within A1P1.
For example, disability benefit regulations which draw unjustifiable distinctions between certain types of disabilities or health conditions may, it seems, be attacked under Article 14. (Compare G.N. v Italy on unjustifiable distinctions between health conditions, albeit in a different context.)
Fair trial: Article 6
Article 6 provides, among other things, that in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The Article also provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law, and sets out minimum rights of anyone charged with a criminal offence.
The Equality Act 2010 does now cover public functions, such as arrest by the police. However, there are gaps in the Equality Act’s coverage of court proceedings, and the Convention is important here: see Appearing in court.
Even without Article 14, the right under Article 6 that a hearing be fair may require that arrangements made are appropriate for a person who stammers.
In an employment context, it has been held that Article 6 will sometimes give a right to legal represenation in an employment disciplinary hearing. See Disciplinary, grievance and other orocedures: Right to be accompanied: Legal representation.
Education: Protocol 1, Article 2 (‘A2P1’)
This says: “No person shall be denied the right to education. In the exercise of any functions that it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” (The UK has accepted the second sentence “only in so far as it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure.”)
The right to education in the first sentence has been held to include the following (Belgian Linguistic case and Campbell and Cosans v UK):
- the right of access to educational institutions existing at a given time
- the right to an effective education; and
- the right to obtain official recognition of the studies which one has completed.
Article 14 in conjunction with A2P1
As well as A2P1 in its own right, discrimination claims under Article 14 are possible where the claim falls within the ‘ambit’ (scope) of the right to education in A2P1. There need be no breach of the right to education itself. This area should be largely covered by the Equality Act education provisions in any event. However, the European Convention may still be relevant: see Where may the Convention rights increase the Equality Act’s protection?
Inhuman or degrading treatment: Article 3
In a fairly extreme case, mistreatment of a disabled person can amount to inhuman or degrading treatment within Article 3. This can sometimes include an obligation of the state to take action against mistreatment by others, such as by members of the public.
ZH v The Commissioner of Police for the Metropolis, Court of Appeal, February 2013
The police’s treatment of an autistic and epileptic boy who had become ‘stuck’ at the side of a swimming pool was held to be inhuman or degrading treatment.
Dordevic v Croatia (link to bailii.org), ECtHR, July 2012
An adult with learning and physical disabilities suffered sustained harassment by local children. The European Court of Human Rights found there had been inhuman or degrading treatment. The authorities’ failure to take effective action here was such that the Croatian state was in breach of Article 3. His mother also succeeded in a claim under Article 8 (below), ie. the right to private and family life.
Summary in blog post: Dordevic v Croatia (link to mentalhealthandcapacitylaw.wordpress.com)
Price v UK, ECtHR, July 2001, Application No.33394/96, on Hudoc database.
The case concerned treatment – in a police cell and then prision – of a ‘four-limb-deficient’ thalidomide victim. The European Court of Human Rights said that although there was no evidence here of a positive intention to humiliate or debase the applicant, “the Court considers that to detain a severely disabled person in conditions where she is dangerously cold, risks developing sores because her bed is too hard or unreachable, and is unable to go to the toilet or keep clean without the greatest of difficulty, constitutes degrading treatment contrary to Article 3 of the Convention. It therefore finds a violation of this provision in the present case.” There was a breach of Article 3, without the need for Article 14.
Elections: Protocol 1, Article 3
Probably not of great relevance to stammering, but an interesting case under this article is an example of how disability discrimination may be a breach of a general convention right without needing to make use of Article 14:
In Alajos Kiss v Hungary (2010) the European Court overturned a Hungarian blanket provision which denied voting rights to mentally disabled people under partial guardianship.
Adjustments to voting facilities to enable access to disabled people may presumably also be covered under this Article, either on its own or in conjunction with Article 14.
Using rights other than Article 14
- Dordevic v Crotia and Price v UK under Article 3, concerning inhuman or degrading treatment;
- Alajos Kiss v Hungary, regarding Protocol 1 Article 3 (elections). Here the European Court overturned a Hungarian blanket provision which denied voting rights to mentally disabled people under partial guardianship.
Article 8 (right to private and family life) may also be particularly important for disability.
Other examples of Convention rights which – particularly in relation to stammering – might be relevant on their own (as well as with Article 14) are the right to a fair trial under Article 6 regarding the court system, police etc, and education under Protocol 1 Article 2.
EU Charter of Fundamental Rights
Where something is not within the ambit of the Convention, it may be worth considering whether it can fall within the EU Charter of Fundamental Rights, on the basis that it is an area where the UK is implementing EU law.