The European Court of Justice has ruled that direct disability discrimination may be established if the criterion for less favourable treatment is inextricably linked to disability. The difference in treatment does not have to be in comparison with a non-disabled worker: it can be between disabled workers, for example where treatment differs according to different types of disability (in terms of particular conditions or symptoms) or potentially a difference in some other aspect of disability, such as whether the disability has been formally declared to the employer. Similarly, workers might be able to show group disadvantage supporting a claim of indirect discrimination where the disadvantaged group comprises individuals whose disabilities are more visible or require more reasonable adjustments than other disabled workers, rather than needing to show that the disadvantaged group has a particular type of disability (in terms of common symptoms).
In VL v Szpital Kliniczny im. dra J. Babińskiego, Samodzielny Publiczny Zakład Opieki Zdrowotnej w Krakowie (Case C-16/19), the employer paid an allowance to disabled workers only if they submitted their disability certificates after a certain date (as its aim was to increase the number of declared disabled workers, thereby reducing the amount it was required to pay into Poland’s state disability fund). Disabled workers were therefore treated differently depending on the date on which they first submitted a certificate of disability; those who had done so before the relevant date could not qualify by submitting a new certificate.
Although direct disability discrimination usually involves comparing the disabled worker’s treatment with that of a worker without a disability, the ECJ confirmed that a claim is possible where the difference in treatment takes place as between workers with disabilities. In this case, direct discrimination could be established if the date criterion was found to be inextricably linked to disability. This question was remitted to the national court to decide, but the ECJ seemed to indicate that there might well be a sufficient link, pointing to the fact that the disability certificate gave rise to specific rights which could be relied on by the worker against the employer deriving directly from the worker’s status as disabled, and that the workers treated less favourably were those who had already declared themselves disabled to the employer.
As for indirect discrimination, the ECJ held that this could arise if workers with certain disabilities were subject to a particular disadvantage in comparison with workers with other disabilities. The key question would be whether the date criterion had the effect of putting certain workers at a disadvantage because of the particular nature of their disabilities. That ‘nature’ might be whether the disability is visible or requires reasonable adjustments at work, rather than the particular condition or symptoms. Workers with visible disabilities or requiring adjustments would have had to formally disclose their disability to their employer at an earlier stage, by submitting disability certificates, whereas workers whose disabilities were less serious or did not immediately require reasonable adjustments might have retained the choice whether to do so and thereby have remained eligible to claim the allowance.
The judgment was handed down after 31 December 2020 and therefore is not binding on UK tribunals, but will be of persuasive value. If adopted, this may expand the scope for discrimination claims here. UK law already provides that direct discrimination claims can be based on comparison with an individual with a different type of disability; the ruling suggests a broad approach to what amounts to a type of disability, for example encompassing whether disability has been formally declared. However, the impact for UK law is likely to be limited, not least because similar facts here could support a claim of discrimination ‘arising from disability’ which does not require a comparator (although, unlike direct discrimination, this is subject to the defence of objective justification.) The ruling may be more significant for indirect discrimination claims. These require a policy, condition or practice which disadvantages the claimant and others “who have the same disability”. Statutory guidance (which tribunals must take into account) suggests that, when identifying a shared disability, the focus should be on whether the symptoms are broadly the same, such as ‘mobility impairments’ (and therefore it does not matter that the medical cause of those symptoms differs). The ECJ’s broader approach to the ‘type’ of disability may mean that those with disabilities with the same visibility or need for adjustments can be seen as having a shared disability. Employers will need to bear this in mind when assessing whether proposed policies may have a discriminatory impact.