Can it be direct discrimination to discriminate against one group of disabled workers compared with another group of disabled workers?
Yes, held the CJEU, in VL (C-16/19), the judgment coming after the Advocate-General's opinion of June 2020.
A Polish hospital had a financial incentive to acquire disability certificates from its staff, as doing so would reduce its liability to contribute to a disability fund. It introduced a monthly allowance worth approx €60 to workers who submitted new disability certificates, but paid nothing to those who had previously done so.
The court held that the criterion of not paying the allowance to the previously-certificated disabled workers, based on the point in time when they had provided a certificate, could be direct discrimination if that criterion was inextricably linked to the disability of those refused the allowance, e.g. if the criterion made it impossible for a clearly-identified group of workers known to be disabled when the allowance was introduced to meet the condition for receiving it. Protection against discrimination is not limited to situations where comparisons are made between those disabled and those not disabled.
The criterion applied for receiving the allowance could also be indirect discrimination if it put some disabled workers at a particular disadvantage, e.g. workers who because of the nature of their disabilities, had already provided certificates as they required reasonable adjustments or had visible disabilities.
Thanks to Ed McFarlane of Law at Work for preparing this case summary.