ECJ Advocate-General Opinion: Disability Discrimination Can Be Found By Comparison With The Treatment Of Other Disabled Employees

By Nic Hart & Liam Hutton


The Advocate-General of the European Court of Justice has given the opinion in VL (Case C-16/19) that disability discrimination can be found by comparison between the treatment of one group of disabled employees and other disabled employees. Whilst Advocate General Opinions are not binding on the Court, they are commonly regarded as influential, and this Opinion has the potential to create a new basis for comparison in discrimination cases.

The case relates to an employer who paid a monthly allowance to those of its disabled employees who obtained and submitted a disability certificate as evidence of their disability. The issue of discrimination arose because only those who had not already obtained and submitted their certificate were eligible for the allowance.

The employer’s purpose for doing this was that by bringing about an increase in the number of disabled workers employed, the employer would be entitled to a reduction in its contribution to a disability fund.

In the Opinion, the Advocate General addresses whether this could be regarded as discriminatory for the purposes of the Employment Equality Framework Directive, and sheds some light on the applicability of the prohibition of discrimination to the conduct of an employer who treats two groups of disabled individuals differently on the basis of an apparently neutral criterion (in this instance, the date of submission of a disability certificate).

The current position

The Equality Act 2010 requires an indirect discrimination claimant to show that the respondent’s provision criterion or practice (“PCP”) puts (or would put) persons sharing a protected characteristic at a particular disadvantage when compared with others, and that this PCP is not a proportionate means of achieving a legitimate aim.

Whether indirect discrimination has taken place usually depends on a comparison made between the impact of the PCP on the group with the relevant protected characteristic and its impact on the group without it.

The Equality Act requires a direct discrimination Claimant to show that they have been treated less favorably than a real or hypothetical comparator because of a protected characteristic. Unlike indirect discrimination, direct discrimination cannot be objectively justified as a proportionate means of achieving a legitimate aim.

In a direct discrimination claim, a Claimant must show that they have been treated less favorably in some way than a real or hypothetical comparator has, or would be.

In the case of both direct and indirect discrimination, a Court or Tribunal are required to compare the impact of certain treatment or a PCP on individuals who hold the protected characteristic (in this case disability), against those who do not.

The PCP in the present case was the provision of an incentive to disabled employees for submitting a disability certificate to the employer. The employer argued that because the criteria for eligibility was based on the date the certificate was obtained, not disability as such, the practice was based on a neutral criterion and was therefore not discriminatory.

One employee who didn’t get the allowance offered by the employer made a disability discrimination claim in Poland, but failed in the national courts because the employee was ruled not to have been treated less favorably than a person who did not share the protected characteristic of disability.

The potential for comparators who also hold the characteristic

In the Opinion of the AG, it is necessary to interpret the requirement to compare with other persons who also possibly have a disability, to assess a measure, which places certain disabled persons at a disadvantage in comparison with other disabled persons by virtue of a criterion.

In the Opinion of the AG, differing treatment of individuals within a group defined by a protected characteristic should therefore constitute indirect discrimination if:

  1. the employer treats individual members of that group differently on the basis of an apparently neutral criterion;
  2. that criterion is inextricably related to the protected characteristic (in this case, disability);
  3. that criterion cannot be objectively justified by a legitimate aim and the means of achieving that aim are not appropriate and necessary.

The AG stated that this interpretation could operate to prevent two like groups that share the same protected characteristic from being treated differently because of a situation that is intrinsically linked to the protected characteristic. Some of the disabled employees in this case (those who received no allowance) were treated less favorably than the other disabled employees, despite the fact that all the disabled persons were in a comparable situation, having all contributed in equal measure to generating the saving sought by the employer by submitting the required certificate.

The Advocate General’s opinion therefore has the potential to broaden the scope of discrimination law fairly significantly.

Should this view be adopted by the Court, it will open up the possibility of comparators from within the group holding the protected characteristic itself, even where there is an apparently neutral criterion, rather than requiring the comparator to be someone who does not hold the protected characteristic.

In the present case, this would result in the Claimant having a claim against her employer that she would not have by virtue of the current application of the law. The effect of broadening the scope for identification of an appropriate comparator in discrimination claims is therefore apparent. If you have any questions regarding any of the above, please do get in touch.

It remains to be seen whether the Advocate General’s Opinion is adopted going forward, but in any case it is certainly an interesting development in the interpretation of discrimination law.

If you have any questions regarding any of the above, please do get in touch.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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