Is it unlawful to discriminate against one group of disabled employees by comparison with the treatment of other disabled employees?
Yes, indicates the Advocate-General in a preliminary ruling for the Court of Justice of the European Union in VL (Case C-16/19), potentially opening up a new area of comparison in discrimination law.
The employer is a Polish hospital. Its contributions to a disability fund would be reduced if it could demonstrate it had increased its number of disabled employees. This required appropriate certification of disability from each such employee. The employer held a meeting and offered an incentive worth around £60/month to get disabled staff who hadn't yet obtained a disability certificate to do so, whilst offering nothing to those who had already provided the requisite certificate. An employee who didn't get the allowance claimed discrimination, but her claim foundered as under Polish law, she had not been treated less favourably than a non-disabled employee. The employer's practice was said to be based on an 'apparently neutral' criterion, the date that the certificate was obtained, not disability as such.
The Advocate-General's Preliminary Opinion, which is not binding on the full Court, is that the Employment Equality Framework Directive prohibits the practice. The difference in treatment was indirect discrimination, it arose from a meeting arranged specifically to encourage employees to acquire a disability certificate, so that the employer could reduce its contributions. It was related to disability as only a disabled employee could get such a certificate. Paying the allowance was not positive action for disabled employees, it was aimed at reducing costs. It was not direct discrimination as there was no direct link between disability and not getting the allowance. It was indirect discrimination, aimed at groups, one group had put in certificates after the meeting, the other hadn't. The Directive should be interpreted so that differing treatment of situations within a group defined by a protected characteristic (disability) may constitute a breach of the principle of equal treatment, if:
(a) the employer treats individual members of that group differently on the basis of an apparently neutral criterion;
(b) that criterion is inextricably related to the protected characteristic (in this case, disability);
(c) that criterion cannot be objectively justified by a legitimate aim and the means of achieving that aim are not appropriate and necessary.
Thanks to Ed McFarlane of Law at Work for preparing this case summary.