Different treatment of two groups of disabled people may constitute direct discrimination
The European Court of Justice (ECJ) has held in VL v Szpital Klimiczny that it may constitute unlawful direct discrimination to treat one group of disabled employees differently to another group of disabled employees under the Equal Treatment Directive.
The employer is a Polish hospital. Its contributions to a disabled fund would be reduced if it could demonstrate that it had increased its number of disabled employees, which required appropriate certification of disability from each disabled employee. Following a meeting with its employees the hospital offered an incentive, which was worth around £60 a month, to get disabled staff who hadn't obtained a disability certificate to do so, while offering nothing to those who had already provided their certificate. An employee who didn't get the allowance claimed discrimination, but her claim was dismissed as she had not been treated less favourably than a non-disabled employee. The employer's practice was not based on disability as such, but on the date that the certificate was obtained and so was therefore "apparently neutral".
The ECJ accepted that there was clearly a difference in treatment, and that the two groups of workers were in a comparable situation (all of the workers were in the hospital's employment by the time the allowance was introduced and they all contributed to the reduction of liability). In these circumstances, if the temporal condition imposed by the hospital for receiving the allowance constituted a criterion inextricably linked to the disability of the workers who were refused that allowance, the treatment would constitute direct discrimination. Although it would be up to the national court to make that final assessment, the ECJ thought it significant that, under national law, the disability certificate gives rise to specific rights that derive directly from the worker's status as a worker with a disability. It also thought it was relevant that the hospital had not given disabled workers who had already submitted their certificates the opportunity to resubmit or submit a new one.
The ECJ then considered indirect discrimination, holding that this could arise if workers with certain disabilities were subject to a particular disadvantage in comparison with workers with other disabilities. The issue to consider would be whether the date criterion had the effect of putting certain workers at a disadvantage because of the particular nature of their disabilities. For example, it could be found that workers with more visible disabilities were, in practice, obliged to make their state of health formally known to their employer earlier on, by submitting disability certificates, whereas workers whose disabilities were less serious or who did not immediately require reasonable adjustments still had a choice as to whether or not to take that step.
Take note: The ECJ's decision in VL shows that it is possible that treating two groups of disabled workers differently may amount to direct discrimination under the Equal Treatment Directive, even though this will normally entail the comparison of the treatment of a disabled worker with the treatment of a non-disabled worker. It's worth noting that in the UK the Equality Act 2010 (EqA 2010) already provides for workers with a particular disability to be compared to workers with a different disability. It is also possible under the EqA 2010 to bring a claim of discrimination arising from a disability which does away with the need for a comparator.