The Equality Act 2010 and the EU Equal Treatment Framework Directive (No. 2000/78) provide protection for employees who receive less favourable treatment on the basis of a protected characteristic ie their disability. When comparing treatment, historically it has been a comparison between the disabled employee and a non-disabled counterpart. This latest case shows that the comparator can also be an employee with a disability, just a different disability to the complainant. The protection is therefore extended to include less favourable treatment in relation to other employees who share the same protected characteristic.
A Polish Psychiatrist, VL, submitted a disability certificate to her employer in December 2011. Subsequently in 2013, the Hospital decided at a board meeting to grant monthly allowances to employees who submitted discrimination certificates from the date of that meeting onward. This meant that the 16 employees who had previously submitted certificates to the employer prior to the 2013 date did not receive the benefit of the monthly allowance whereas employees with more recent submissions would. Those employees who had already submitted a disability certificate were not allowed to resubmit another certificate to circumvent the cut-off date for the purposes of the allowance. VL argued that she had been less favourably treated than her more recently diagnosed counterparts.
The ECJ decided that this treatment amounted to direct discrimination and that the legislation was aimed at protecting those employees with a disability. The purpose of the EU Directive regarding Equal Treatment is to protect all disabled employees from any form of discrimination even those within the same protected characteristic. The ECJ stated that when determining whether an employee has been treated less favourably, the facts do not have to be identical but they must be comparable and measured in a specific and certain way. On these facts, the employees were comparable as they all submitted a disability certificate as required however one group were granted a benefit and the other was not.
The ECJ also concluded that indirect discrimination could arise if an employee with one disability is treated less favourably than another employee with a different disability. Indirect discrimination occurs where a policy, criteria or practice (PCP) is applied by the employer to everyone but the PCP disadvantages those who have a protected characteristic, in this case a disability, that the employee in question is disadvantaged by it and the PCP cannot be justified.
The ECJ concluded that indirect discrimination occurred where a date criterion, which appears to be neutral and non-discriminatory, was imposed which put a particular group of disabled employees at a disadvantage over others. For example, those with visual or hearing impairments may be required to make their condition known relatively sooner than those who have a disability that is less obvious or that didn’t require immediate reasonable adjustments. This meant that the choice as to whether to submit a disability certificate was given to one group whose disabilities are less obvious and not to the other.
Ultimately, they concluded, it would be down to the national courts to determine whether the date criterion was inextricably linked to disability but to avoid potential litigation, it is important, when imposing date criterion, to consider its impact on those with protected characteristics pre and post implementation and whether anything can be done to mitigate any potential discriminatory effects of that criteria or practice. For example, allowing individuals to re-submit certificates may have been a less discriminatory means of implementing the practice and avoided any less favourable treatment either completely or in part.
As the UK left the EU on the 31 January 2020 and the transition period formally ended on the 31 December 2020, the UK courts are no longer bound by the decisions made by the ECJ on or after the end of the transition period. However, the UK courts are still likely to have regard to the decisions made by the ECJ which means parties may still seek to rely on these decisions as having persuasive effect.
If you are an employer who has or seeks to put into effect any benefit or schemes with a cut-off date that may adversely affect one group of disabled employees in comparison to another it is important to consider the effect that will have and whether there are any less discriminatory means of implementing it. In addition, it is wise to consider your justification for implementing it, given the expansion of the categories of comparator that may be used to challenge its implementation.
Should you require any advice on this or any other Employment law queries, please do not hesitate to contact a member of the Employment Law team.
Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.