7 September 2021

Employers must act fairly across different groups of disabled people

Disability impacts around 19% of the UK working-age adult population. Despite this, only 52.3% of working-age disabled people are in employment compared to 81.1% of working-age non-disabled people.

There is, therefore, around a 28.8 percentage point gap in employment rates between disabled and non-disabled people, representing over 2 million people. Research also shows that disabled people are significantly more likely to experience unfair treatment at work than non-disabled people.

Statistics like these emphasise the need for a continued focus on disability inclusion and equality of opportunity for all.

To that end, Disability Awareness Day takes place this year on September 12. As part of our focus on Disability Awareness Day, my colleagues and I have been looking at various recent cases and issues in relation to disability discrimination. In this, the penultimate of our series of articles, we are looking at case law which assesses the extent to which employers must act fairly across different groups of disabled people.

VL v SZPITAL KLINE NY [2021]

In the case of VL v SZPITAL KLINE NY [2021], the European Court of Justice (ECJ) considered whether it may be direct or indirect discrimination for an employer to pay an allowance to disabled workers who submitted their disability certificates after a certain date, but not to other disabled workers who submitted their certificates before this date.

Facts

VL, a Polish worker, was denied an allowance paid by her employer (a hospital) to disabled workers because she submitted her disability certificate before the date of a management meeting. At that meeting, it had been decided to try to increase the number of disabled workers (thereby reducing the hospital's contribution to Poland's disability fund) by offering the allowance to workers who produced a certificate after the meeting. Thirteen workers who subsequently submitted certificates were granted the allowance. However, 16 workers who had submitted their certificates before the meeting did not receive the allowance. This included VL, who complained that the treatment amounted to unlawful discrimination. While the criterion for payment was apparently neutral, disabled workers were treated differently depending on their certificate submission date.

The court of first instance in Poland determined that there was no discrimination because any difference in treatment presupposed a comparison with workers who were not disabled. However, the Polish appellate court subsequently asked the ECJ to consider whether, in treating two groups of workers with the same protected characteristic differently, the employer had breached the principle of equal treatment.

In his opinion, Advocate General Pitruzzella considered that treating two groups of workers with the same protected characteristic differently may be a breach of Article 2 of the Directive and that a disabled worker may be able to compare themselves with a group of workers sharing the same protected characteristic as them in order to establish indirect discrimination.

Outcome

The ECJ held that it may be direct discrimination for an employer to pay an allowance to disabled workers who submitted their disability certificates after a certain date but not to those who submitted their certificates earlier, if the date criterion was found to be inextricably linked to disability. Regarding indirect discrimination, this could arise if workers with certain disabilities were subject to a particular disadvantage in comparison with workers with other disabilities.

Lessons to be learnt for employers

Care must be taken when assessing comparators in discrimination claims. In the UK, section 6(3)(a) of the Equality Act 2010 already provides for workers with a particular disability to be compared to workers with a different disability.
This judgment recognises that disabled people are not a homogeneous group and that there can potentially be discrimination due to one group of disabled people being treated less favourably, or put at a disadvantage, compared to another group of disabled people (e.g. people with visible disabilities compared to people with hidden disabilities who may have more discretion as to whether or not they disclose their disability to the employer).
An employer’s practice may constitute direct discrimination if it is established that that practice is based on a criterion that is inextricably linked to disability, i.e. if it makes it impossible for a group of employees, consisting of all the workers with disabilities whose disabled status was necessarily known to the employer when that practice was introduced, to satisfy that condition.
A practice, although apparently neutral, may constitute discrimination indirectly based on disability if it is established that it puts employees with disabilities at a particular disadvantage depending on the nature of their disabilities, e.g. whether they are visible or require reasonable adjustments to be made to working conditions, unless it can be objectively justified.

This ECJ case seems to indicate a potentially broader approach could be taken than is set out in section 6(3)(a) of the Equality Act 2010, namely by establishing a group of disabled people by reference to a shared inherent characteristic of their impairments (e.g. whether the impairment is visible or invisible), rather than them necessarily sharing the exact same impairment.

Time will tell whether the approach taken in this ECJ judgment will be adopted by UK courts and tribunals and whether ‘disability’ in the Equality Act can be interpreted to encompass this broader categorisation of types of disability. If it is, it could expand the way in which subcategories of people with disabilities with a shared inherent characteristic of their disability could bring claims, and may in particular assist claimants in relation to claims for indirect discrimination where it is necessary to show a group disadvantage.