The employer offered a monthly allowance to people who submitted a disability certificate after a certain date to encourage more people to do so, but not to those who had submitted one before that date. The EU Court held that less favourable treatment of some disabled people compared to other disabled people could be direct discrimination if based on a criterion inextricably linked to the disability – as the court implied was likely in this case. Alternatively the employer’s practice could be indirect discrimination if it put people with certain disabilities at a particular disadvantage, eg people whose disabilities were visible or required reasonable adjustments. Implications in Britain are discussed in My comments below.
EU Court of Justice, 2021. Full judgment www.bailii.org/eu/cases/EUECJ/2021/C1619.html
Polish law imposed a monthly financial contribution on employers not meeting a target of 6% of the workforce being persons with disabilities. The hospital in this case wanted to reduce its monthly contributions, so after a meeting with staff it decided to pay a monthly allowance of 250 zlotys to workers submitting disability certificates after that meeting.
The claimant had submitted a disability certificate before the meeting, so she was not entitled to the monthly allowance. She claimed disability discrimination. The EU Court of Justice was asked to consider the position under the Framework Employment Directive.
Held by EU Court of Justice: this could be direct discrimination if based on a criterion inextricably linked to the disability (as the court implied was likely here), or indirect discrimination if it put people with certain disabilities (eg visible disabilities) at a particular disadvantage.
EU Court of Justice (ECJ) decision
Comparision is not limited to non-disabled people
The court said first that unlawful disability discrimination is not limited to less favourable treatment – or being put at a particular disadvantage – compared with people who do not have disabilities. The protection granted by the directive would be diminished if discrimination within a group of persons, all of whom have disabilities, were by definition not covered by the prohibition of discrimination.
There is direct discrimination, said the court, where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on the grounds of disability.
The court said a provision or practice can only establish a difference in treatment directly based on disability if it is based on a criterion that is “inextricably linked to disability”. It gave examples from non-disability cases:
- where legally only persons of different sexes could marry, the court had held that a difference in treatment based on workers’ marital status and not expressly on their sexual orientation was still direct discrimination on the basis of sexual orientation;
- where entitlement to an old-age pension was subject to a minimum age requirement, the court had held that a difference in treatment of workers based on entitlement to an old-age pension constituted direct age discrimination;
- where women were entitled to draw a retirement pension at a younger age than men, the court had held national rules permitting an employer to dismiss employees who had acquired the right to draw a retirement pension constituted direct sex discrimination.
The court said it follows that there is direct discrimination where:
- an employer treats a worker less favourably than another of its workers is, has been or would be treated in a comparable situation, and
- it is established, having regard to all the relevant circumstances, that that unfavourable treatment is based on the former worker’s disability, inasmuch as it is based on a criterion which is inextricably linked to that disability.
In the present case, was the situation of workers who submitted certificates after the meeting comparable with workers who submitted certificates before the meeting?. Yes, said the court, having regard to the intended purpose of the allowance paid to workers who had submitted a certificate – ie to reduce the amount of the contributions payable by the hospital by encouraging workers with disabilities already employed by that hospital who had not yet submitted their disability certificates to do so. All the workers who submitted a disability certificate – including those who had already entered the service of the hospital when the hospital decided to introduce the allowance – contributed to the saving sought by that employer, regardless of when they submitted their certificate.
Was the criterion inextricably linked to the disability? The court said it was for the national court to decide, having regard to national law, whether the time condition (after rather than before the meeting) imposed by the employer was a criterion inextricably linked to the disability of workers refused the allowance, so that there is direct discrimination. The court said on this:
- one particularly significant factor, highlighted by the claimant VL, was that under national legislation the disability certificate gave rise to specific rights which may be relied on by the worker against the employer; and
- the employer’s practice could make it impossible for a clearly identified group of workers to meet the condition for receiving the monthly allowance, namely all the workers with disabilities whose disabled status was necessarily known to the employer when that practice was introduced since they had previously formalised that status by submitting disability certificates.
Indirect discrimination could apply if an apparently neutral practice leads to people with disabilities being put at a particular disadvantage. If the national court here decides that the difference in treatment stems from an apparently neutral practice, it needs to ascertain whether that difference in treatment had the effect of placing persons who have certain disabilities at a particular disadvantage compared with persons who have other disabilities.
For example did the employer’s practice put workers at a particular disadvantage if their disabilities were visible, or required reasonable adjustments to be made? It might be primarily workers who have such disabilities who in practice were obliged to make their state of health formally known to their employer before the cut-off date, by submitting disability certificates – whereas other workers with disabilities of a different nature, for example because their disabilities were less serious or did not immediately require reasonable adjustments, still had a choice as to whether or not to take that submit a certificate.
The employer would have a defence to indirect discrimination if it could justify its practice. However, said the court, the intended purpose of the practice seems to have been to save money, so the conditions for justification were not satisfied. This was subject to verification by the national court.
Comments: Decision not binding on British courts
This EU Court decision was after 31st December 2020. As a result British courts are not bound by it but “may have regard to it”. See Brexit: Effect of EU law when interpreting Equality Act from 2021>EU Court decisions made after 2020.
Comments: Direct discrimination
Firstly, to take perhaps the simplest and least contentious aspect of the VL decision, the court confirmed that the claimant need not be treated less favourably than non-disabled people. It can be direct discrimination to treat one disabled person less favourably than another disabled person because of disability. This should already apply in the UK. The Court of Appeal in Owen v Amec, 2019, said the comparator would be someone who did not have “that particular disability“, implying that the comparator might have a different disability. Also the wording and purpose of the Equality Act seem very consistent with the Equality Act applying if a disabled person is treated less favourably than another disabled person, at least if the latter has a different disability.
What about other parts of the VL decision on direct discrimination?
As mentioned above, the Court of Appeal in Owen v Amec asked whether a hypothetical comparator without “that particular disability” would have been treated in the same way, even though the Equality Act 2010 does not use this wording. (The Disability Discrimination Act 1995 did use this wording.) The VL case however seems to say the comparator need not be someone without that particular disability.
Also UK cases have seen the question of whether the claimant was treated less favourably than a hypothetical employee as intertwined with the question of whether the treatment is “because of” disability. Each question is a kind of cross-check that the other is satisfied. The VL case appears to treat the question of whether the comparators are in a “comparable” situation as quite different from whether the difference in treatment was “based on” or because of disability. For the latter question, the court used a test of whether the criterion (the time cut-off) was inextricably linked with disability.
To my mind the VL decision as regards direct discrimination is pretty difficult to understand. The decision may be clarified by the EU Court in future, but the fact that it is difficult may make it less likely that British courts will choose to follow it. British courts can no longer request a ruling from the EU Court to clarify the position.
However the decision might at least be used to help argue that the claimant need not necessarily have a “particular disability” that the comparator does not have, or for some flexibility here. The “particular disability” approach stems from DDA 1995 wording, and the Equality Act “because of disability” test does seem to suggest a wider interpretation. For example it might be argued (on the basis of the Equality Act wording, as well as VL) that it can potentially be direct discrimination not to appoint someone because they have a severe stammer despite the fact that the employer is happy to appoint someone with a less severe stammer, even if they (arguably) have the same “particular disability”. Perhaps there will still need to be some identifiable difference in the disability of the claimant compared with that of the comparator. However in practice these issues shouldn’t normally matter because of the option to claim for discrimination arising from disability (s.15) instead, which will often be more appropriate than a direct discrimination claim anyway.
Comments: Indirect discrimination
For indirect discrimination, the Equality Act looks at whether people with the “same” disability are put at a particular disadvantage compared with people who do not have that disability. The EU Court in VL says the court must ascertain whether the difference in treatment had the effect of placing persons who have “certain disabilities” at a particular disadvantage compared with persons who have other disabilities. For example did the employer’s practice put workers at a particular disadvantage if their disabilities were visible, or required reasonable adjustments to be made? The two approaches sound similar, but in fact the EU Court perhaps goes further than the previous UK approach, as illustrated in Williams v Swansea below.
Williams v Swansea case
In Williams v Swansea University Pension Scheme the claimant was entitled to an early pension only because of his disability, but it was less than it would have been for a disability which came on suddenly. It was less because he had reduced his working hours because of his disability. The Supreme Court held there was no ‘unfavourable treatment’ within s.15 Equality Act. The Employment Appeal Tribunal (bailii.org) at para 33 dismissed the possibility of indirect discrimination:
“If the analysis were to descend to the detail of the particular disability suffered by members of the group being considered, it would need to be established that the Claimant together with others sharing his particular disability were at a disadvantage compared with those who did not have that particular disability but had some other. …. It is, however, easy to see that many suffering very different disabilities would be given precisely the same advantage or disadvantage as was the Claimant. In short, there would be very little prospect of any claim for indirect discrimination succeeding. The Tribunal’s conclusion to the opposite effect was untenable.”
Whether or not the EAT should have dismissed indirect discrimination so readily on standard British law, it could be argued under the VL case that the pensions scheme rules placed people with certain disabilities – disabilities which came on more gradually – at a disadvantage compared with those with disabilities which came on suddenly, so that there was indirect discrimination unless justification was shown.
Following Brexit the British courts do not have to follow the VL decision but may have regard to it (above). It remains to be seen whether they do so as regards indirect discrimination.