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.
Summary
- Article 14 of the European Convention on Human Rights (the Convention) prohibits discrimination, but only in situations which fall within the “ambit” of another Convention right (below), ie within the scope of another right.
- It is unclear how far disability discrimination in employment (below) is covered. This may be within the scope of Article 8 on private and family life, and various decisions of the European Court of Human Rights (ECtHR) in Strasbourg as well as a British employment tribunal in 2021 support that. However earlier UK court decisions have taken a more restrictive approach.
- Discrimination in education, whether school or university, is likely to be within Article 14.
- Whether Article 14 applies to discrimination in the provision of services or public functions is likely to depend on whether the particular facts fall within a Convention right. These include for example private and family life, fair trial or hearing, social security or tax, elections and prisoners. There seems to be a fairly high bar as to when social/cultural activities are included in the right to private/family life.
- Unlike the Equality Act, the Human Rights Act can be used against laws, particularly regulations. Article 14 along with 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. For example the other Convention right might not require the state (eg the government) to provide the public with a particular education facility (below Education) or with a particular welfare benefit (below Social security and tax). However if the state chooses to provide it, then under Article 14 it must do so in a non-discriminatory way.
Article 14 therefore 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.
An important consequence is that Article 14 does not necessarily give a general right against non-discrimination relating to employment. Employment situations may fall within the ambit of Article 8 (private life), but how they do is contentious: below What about disability discrimination by employers? Article 8 with Article 14? However discrimination in the field of education, for example, is more clearly covered by Article 14 because there is a Convention right specifically on education: 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 (Schedule 1 of the HRA, on legislation.gov.uk).
Protocol 12 does not apply in UK
Protocol No. 12 (www.coe.int) of the Convention contains a general prohibition on discrimination by public authorities, whether or not the discrimination falls within the ambit of another Convention right. However this Protocol applies only to those countries which have signed up to it. The UK has not signed up to the Protocol.
Private and family life under Article 8
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.)
Where a situation is within the “ambit” of Article 8, the non-discrimination rules of Article 14 will apply. However how far that ambit stretches is unclear.
There are indications from the ECtHR in Strasbourg that disability discrimination will sometimes, and perhaps very often, fall within the ambit of Article 8. This may include disability discrimination by employers, as illustrated by the ECtHR decisions below and a British employment tribunal decision in 2021, but earlier UK decisions are more restrictive: see below What about disability discrimination by employers? Article 8 and Article 14.
At least as regards accessibility of buildings, the ECtHR in Strasbourg has taken quite a restrictive approach to how far social/cultural activities within the ambit of Article 8.
Article 8 may be useful in arguing that the possibility of using someone else to phone for you is not a good argument for service providers insisting on being contacted by phone, and in emphasising the importance of personal autonomy: see Human rights and provision of services.
Some ECtHR decisions on Article 8 (with Article 14)
Some examples of ECtHR (Strasbourg) decisions 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 that it was not something a woman could do. This was held to be within the ambit 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 “… the concept of ‘private life’ extends to aspects relating to personal identity and a person’s sex is an inherent part of his or her identity. Thus, a measure as drastic as a dismissal from a post on the sole ground of sex has 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. What is more, 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
The court held 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 applicant was found unfit for military service due to a disability but nevertheless had to pay a military service exemption tax. The ECtHR held the case fell within the ambit 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 Strasbourg decisions 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 those cases (and T v Ministry of Defence below):
- a disability affects a person’s physical (or mental) integrity
- discrimination will cause injury to the person’s feelings, and distress, so their psychological integrity is affected (compensation for injury to feelings is the main remedy under the EqA)
- disability discrimination is likely to have adverse effects on a person’s identity, self-perception and self-respect
- employment has an impact on a person’s “inner circle”, and whether they are in work has tangible consequences for the material well-being of their family;
- a person’s working life (or lack of it) affects a wide range of their relationships with other people, including those of a professional nature, and the person’s ability to practise a profession which corresponds to their 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.
Even so, historically British court decisions have not generally favoured employment falling within Article 8. However there is now a 2021 Employment Tribunal decision (not a binding precedent) which held disability discrimination in employment – or indeed post-employment – to fall within the ambit of Article 8, so that Article 14 applied. Appeal decisions will need to clarify the position.
T v Ministry of Defence, Employment Tribunal, 2021
An employment tribunal held that under the Human Rights Act, the Equality Act must be re-interpreted to permit a claim for disability discrimination which occured after discharge from the armed forces. It was in breach of Article 14 to apply to former members of the armed forces a provision excluding the armed forces from the EqA employment provisions as regards disability discrimination.The tribunal held Article 14 could apply as the case was within the ambit of Article 8. Particular features the tribunal mentioned were that the applicant was discriminated against in relation to her disability, and this discrimination caused injury to her feelings and distress so her psychological integrity was affected.
More: T v Ministry of Defence>Comments: Using Article 8 in employment.
Steer v Stormsure, Court of Appeal, 2021
The Court of Appeal assumed without deciding that an employment case (sex discrimination) was within the ambit of Article 8. It held the lack of ‘interim relief’ was not a breach of Article 14 anyway.
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.”
Note: The court here did leave open that Article 8 may have been engaged, though there was no breach as the employer’s action was justified.
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. Legally 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. The court said an example of something within Article 8 would be an employee dismissed for eating cake at home or in his lunch break at work.
Note: 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. The claimant had argued that the Convention required a higher threshold of justification under the Disability Discrimination Act.
Other examples of employment situations which the ECtHR in Strasbourg has held to fall within the Convention, for example within the ambit of article 8 (private and family life), include Sidabras v Lithuania (bailii.org), 2004, where ex-KGB personnel were excluded from a wide range of occupations, and Kyriakides v Cyprus (bailii.org), 2008, where the court held that a dismissal may in some instances seriously interfere with the private life of an individual.
How far are social/cultural activities within the ambit of Article 8?
Lárusson v Iceland, ECtHR, 2022 – and Glaisen noted there – seem to indicate that the ECtHR takes quite a restrictive approach on how far general social and cultural activities fall within the ambit of Article 8, at least in relation to making buildings accessible.
It is possible that a similarly restrictive approach might be applied more generally to social/cultural services (such as a cinema, see Glaisen), for example where a person who stammers had difficulty getting through on the telephone, or contacting the service in another way. (Education is different though).
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 Article 8 being used independently in relation to disability is LH Bishop v Commissioners of Revenue and Customs, 2013, where a tribunal held that a business having to use friends and family to file online VAT returns on the business’ behalf, or to use the computer of a friend or family member, would be an unjustified breach of Article 8. See also on this Human rights and provision of services.
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 fall within the “ambit” of this Article, and can therefore be challenged under Article 14. On social security, see page 9 of Practical Equality Rights in Welfare Benefits Advice (pdf, equallyours.org.uk), May 2018 (though probably out of date now). There are many cases on this difficult area. Just a few examples:
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). However the government is likely to be allowed a large area of discretion in deciding where lines should be drawn.
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 a person’s civil rights and obligations or of any criminal charge against them, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Article 6 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 covers public functions, such as arrest by the police. How a judge runs court proceedings is not likely to be covered by the Equality Act, but even so a judge has a duty to make reasonable adjustments. 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 of the Convention (non-discrimination), the Article 6 right to a fair hearing may require that reasonable adjustments are made.
Apparently “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: see LH Bishop v Commissioners of Revenue and Customs>Tax dispute 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: 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 (bailii.org), 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 contrary to Article 3 of the Convention. It was also a breach of DDA 1995.
Đorđević v Croatia (bailii.org), ECtHR, 2012
An adult with learning and physical disabilities suffered sustained harassment by local children. The ECtHR 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), 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 ECtHR 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 the ECtHR has confirmed that for example the duty to make reasonable accommodation (ie reasonable adjustments) under Article 14 can apply to elections in conjunction with that Article:
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.
Note: Applying Article 14 to the referendum (as opposed to the election) was based on a different Article which does not apply in the UK.
An earlier case under that 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 ECtHR overturned a Hungarian blanket provision which denied voting rights to mentally disabled people under partial guardianship.
Using rights other than Article 14
It is worth remembering that there may be a breach of a Convention right viewed alone, without requiring Article 14. Examples include:
- ZH v The Commissioner of Police for the Metropolis, Đorđević v Croatia and Price v UK under Article 3 (above), concerning inhuman or degrading treatment
- Alajos Kiss v Hungary, regarding Protocol 1 Article 3 (elections)
- the right to a fair trial under Article 6 (above) regarding the court system, police etc (and Article 5 (liberty and security) might also be relevant as regards prisoners)
- Article 8 independently (above) including on not having to rely on others to communicate.
