Article 14 of the European Convention on Human Rights (non-discrimination) applies if the situation is within the scope of another Convention right. What does this mean in practice? For article 14 generally and the context, see main European Convention page.
- Article 14 which bans discrimination only applies to situations which fall within the ‘ambit’ of another Convention Right, ie within the scope of another right.
- It is unclear how far employment discrimination is covered. It may be within the scope of Article 8 covering private and family life. However UK courts seem to have been much more reluctant to see employment as covered than the European Court of Human Rights (ECtHR) in Strasbourg.
- Discrimination in education, whether school or university, is likely to be within Article 14.
- As to discrimination in the provision of services or public functions, whether Article 14 applies is likely to depend on whether the particular facts fall within a Convention right. These include for example a fair trial or hearing, social security or tax, elections and prisoners.
- Article 8 on private and family life may be helpful. It could bring within Article 14 a service etc relating to private or family life. It can also be relevant in deciding what is justified or reasonable, eg it could help to counter any argument by a service provider that a person who stammers should be expected to use family or friends to speak for them.
- Unlike the Equality Act, the Human Rights Act can be used against laws, particularly regulations. The right to peaceful enjoyment of possessions in A1P1 (below) has been used to challenge regulations on tax and social security benefits.
Article 14 and the ‘ambit’ of other Convention rights
Article 14 (non-discrimination) only applies if the facts complained of fall within the ‘ambit’ of another Convention right – in other words within the ‘scope’ of the other right. This is because Article 14 says “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination…” There does not have to be a breach of the other Convention 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 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 Article 14 may not give a general right against non-discrimination in employment for example, as there is no Convention right on employment generally – employment situations may fall within the ambit of Article 8 (private life) but the scope of that Article is contentious. On the other hand discrimination in the field of education is likely to be covered by Article 14 because there is a Convention right covering education (see Protocol 1, Article 2 – below).
This page lists below some Convention 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 (www.coe.int) contains a general prohibition on discrimination by public authorities, whether or not it falls within the ambit of another Convention right. However the Protocol applies only to those countries which have signed up to it. The UK has not signed up to the Protocol and probably has no plans to do so.
Private and family life under Article 8
Article 8 covers respect for private and family life. There are indications from the ECtHR in Strasbourg that disability discrimination will sometimes, and perhaps very often, fall within the ambit of Article 8. That may include disability discrimination by employers: but on the more restrictive decisions by UK courts on this, see below What about disability discrimination by employers? Article 8 and Article 14. 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.)
Article 8 could be used if for example a service provider refused to offer someone who stammers an alternative to using the telephone. More generally the ECtHR has used Article 8 to emphasise the importance of personal autonomy in deciding what is a reasonable adjustment. See Human Rights Act 1998/ European Convention>What is reasonable or justified.
Some examples where discrimination has been held to be within the ambit of Article 8:
Boyraz v Turkey (hudoc.echr.coe.int), ECtHR, 2014
A woman was not allowed to take up a job as a security officer, 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.
Much of paragraph 44 of the court’s judgment could apply to disability. The ECtHR said there: A person’s sex is an inherent part of his or her identity and dismissal on the sole ground of sex would have adverse effects on a person’s identity, self-perception and self-respect and, as a result, his or her private life. Besides, the applicant’s dismissal had an impact on her “inner circle” as the loss of her job must have had tangible consequences for the material well-being of her and her family. The applicant must also have suffered distress and anxiety on account of the loss of her post. Moreover the applicant’s dismissal affected a wide range of her relationships with other people, including those of a professional nature and her ability to practise a profession which corresponded to her qualifications. Thus Article 8 was applicable.
IB v Greece, ECtHR, 2013
The court found it was unlawful discrimination contrary to Article 14 to dismiss an employee because of his colleagues’ fears about him being HIV positive.
After citing some previous decisions, the court said “It is therefore now established that both employment matters and situations involving HIV-infected persons fall within the scope of private life. The Court cannot but conclude thus, since the HIV epidemic cannot be considered only as a medical problem given that its effects are felt in every sphere of private life.”
Kiyutin v Russia, ECtHR, 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, 2009
The applicant was found unfit for 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.
The ECtHR considered there to be no doubt that a tax which stemmed from incapacity to serve in the army due to an illness, and so from a state of fact outside the claimant’s contol, fell within the ambit of Article 8. This was so even if the consequences of the measures were primarily monetary (‘family’ life included material interests).
The ECtHR had previously acknowledged several times that private life within Article 8 includes a person’s physical integrity. Also the Convention had to be interpreted in the light of today’s conditions. This case concerned possible discrimination against someone with a physical disability, even if the disability was only considered minor by the Swiss courts. The ECtHR considered there to be a European and universal consensus on the necessity of protecting disabled people from discriminatory treatment. As evidence for this, the court cited in part the UN Convention which took effect in 2008.
What about disability discrimination by employers? Article 8 with Article 14?
It might be thought from the cases above that it is not difficult for disability discrimination by employers to fall within Article 14, as being within the ambit of Article 8. Arguments in favour of that include, in the light of the cases above:
- a disability affects a person’s physical integrity;
- disability discrimination is likely to have adverse effects on a person’s identity, self-perception and self-respect;
- employment has an impact on one’s “inner circle”, and whether one is in work has tangible consequences for the material well-being of one’s family;
- one’s working life (or lack of it) affects a wide range of one’s relationships with other people, including those of a professional nature and one’s ability to practise a profession which corresponds to one’s qualifications;
- there is a European and universal consensus on the necessity of protecting disabled people from discriminatory treatment, evidenced in part by the UN Convention.
In Britain on the other hand, court decisions have not generally favoured employment falling within Article 8. These decisions were made without the benefit of more recent decisions of the ECtHR in Strasbourg, and might need to be reconsidered. It is not known what the UK courts would decide now. Perhaps, in any event, lower tribunals in the UK may feel constrained to follow guidance in Court of Appeal decisions (below) even though they pre-date more recent ECtHR decisions. Therefore it may take decisions by higher UK appeal courts to potentially interpret Article 8 more widely. Some UK court decisions:
Leach v Ofcom (bailii.org), Court of Appeal, 2012
The claimant was dismissed when his employer received information that he may have been involved in sex offences against children in Cambodia. He claimed for unfair dismissal. On human rights, the claimant submitted that his dismissal effectively rendered him unemployable, which was a serious interference with his private life.
The court said “Even if loss of employment opportunities in consequence of a dismissal for a substantial reason were capable of being an interference with the right to respect for private life under Article 8 (which is not some kind of universal haven for the protection of the whole of human life)…” the interference was justified so there was no breach of Article 8 anyway. It said “‘Human rights’ points rarely add anything much to the numerous detailed and valuable employment rights conferred on workers.”
X v Y, Court of Appeal, 2004
The claimant was dismissed after being cautioned for a sex offence with another man, in a cafe lavatory to which the public had access. There was no corresponding offence between a man and a woman.
Because it happened in a place to which the public had access (and perhaps because it was a criminal offence), the court held it was held not within the scope of Article 8 on private life. An example of something within Article 8 would be an employee dismissed for eating cake at home or in his lunch break at work.
The court here seems to have focused on whether the REASON for dismissal was within the employee’s private or family life.
A v London Borough of Hounslow, EAT, 2001
The EAT held that Article 8 and Article 1 of the First Protocol (possessions), below, do not cover the right to be employed, or not to have a contract of employment terminated.
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 (hudoc.echr.coe.int) (2006) where ex-KGB personnel were excluded from a wide range of occupations, or in Kyriakides v Cyprus (hudoc.echr.coe.int) (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 (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 Article 1 of Protocol 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 social security benefits are within this Article’s “ambit”, and are therefore subject to the anti-discrimination rules of Article 14. On social security, see page 9 of Practical Equality Rights in Welfare Benefits Advice (pdf, equallyours.org.uk), May 2018. For example:
JD and A v United Kingdom, ECtHR, 2019
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 family to have to move. The court held this was potentially discrimination under Article 14. However the UK government could justify it in the light of safeguards as to when Discretionary Housing Payments would have to be granted.
Burnip v Birmingham City Council, Court of Appeal, 2012.
UK housing benefit rules (the ‘bedroom tax’) were found to infringe Article 14. The parties had accepted that housing benefit fell within A1P1.
R (RJM) v Secretary of State For Work and Pensions 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.
Disability benefit regulations which draw unjustifiable distinctions between certain types of disabilities or health conditions might, it seems, be attacked under Article 14. (Compare G.N. v Italy on unjustifiable distinctions between health conditions, albeit in a different context.)
A1P1 has also been used in tax cases. For example regulations on submitting VAT returns were held to be unlawful disability discrimination:
LH Bishop v Commissioners of Revenue and Customs, First-tier Tribunal (Tax), 2013
The tribunal held there was a breach of the Convention where businesses were required to submit VAT returns online, without appropriate exemptions for people who because of disability (or some other reasons) were unable to use a computer. The case seems relevant to whether people who stammer should be expected to use family or friends to speak for them.
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 now covers public functions, such as arrest by the police. However how a judge runs court proceedings is not likely to be covered by the Equality Act. Nevertheless a judge has a duty to make reasonable adjustments, and Article 6 is one of the provisions underpinning that: see for example the NI Court of Appeal judgment in Galo v Bombadier Aerospace. Even without Article 14, the Article 6 right to a fair hearing may require that reasonable adjustments are made.
Civil rights and obligations do not include “public law” rights and obligations. What is “public law” as opposed to “civil” is decided under the Convention, rather than what the UK would see as public law. For example tax disputes with HMRC will normally be “public law” and so not within Article 6.
In an employment context, it has been held that only in very limited circumstances will Article 6 give a right to legal representation in an employment disciplinary hearing. See Disciplinary, grievance and other procedures: Right to be accompanied: Legal representation.
Education: Article 2 of Protocol 1 (‘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.”)
Broadly, the right to education in the first sentence has been held to include the following (Belgian Linguistic case (HUDOC), ECtHR, 1968):
- 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 Article 2 of Protocol 1 (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?
It has been held A2P1 includes universities (Leyla Şahin v. Turkey (HUDOC) at para 134-141, ECtHR, 2005; Çam v Turkey, ECtHR, 2016 Enver Şahin v Turkey, ECtHR, 2018). So Article 14 can also apply to discrimination in higher education. See particularly the decisions of the ECtHR in Strasbourg on reasonable adjustments.
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, 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.
Đorđević v Croatia (bailii.org), ECtHR, 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 (above), ie. the right to private and family life.
Summary in blog post: Đorđević v Croatia (mentalhealthandcapacitylaw.wordpress.com)
Price v UK (bailii.org), ECtHR, 2001
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.
Liberty and security: Article 5
Discrimination between different prisoners is likely to fall within the ambit of this.
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:
Alajos Kiss v Hungary, ECtHR, 2010
The European Court of Human Rights 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
- Đorđević v Crotia and Price v UK under Article 3, concerning inhuman or degrading treatment; and
- Alajos Kiss v Hungary, regarding Protocol 1 Article 3 (elections).
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 Article 5 (liberty and security) as regards prisoners, the right to a fair trial under Article 6 regarding the court system, police etc, and education under Protocol 1 Article 2.