The Equal Treatment Directive provides that it is direct discrimination to treat a disabled worker less favourably than another person on the grounds of disability. In VL v Szpital Kliniczny im. dra J. Babińskiego Samodzielny Publiczny Zakład Opieki Zdrowotnej w Krakowie, the Court of Justice of the European Union (CJEU) held that, while it is usual to compare the treatment with someone who does not have a disability, direct discrimination may still occur if a comparison is made with other workers who also have disabilities.
VL, a psychologist employed by a Polish hospital, submitted a disability certificate to her employer in December 2011. A couple of years later, the hospital director announced at a meeting with staff that employees who submitted a disability certificate following the meeting would be granted an allowance. This was in order to reduce the contributions the hospital would have to make to the State Fund for the Rehabilitation of Persons with Disabilities, which required businesses to pay a levy if people with a disability were underrepresented in the workplace.
In the event, 13 workers did so and received the allowance. However, this meant that 16 other disabled workers, who had submitted their certificates before the meeting (including VL) did not. VL lodged a claim with the district court arguing that she had been discriminated against in relation to pay.
Article 2 of the Equal Treatment Directive (ETD) states that the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1, including disability.
Decisions of lower courts
The district court dismissed her claim and VL appealed to the regional court. She argued that the practice adopted by her employer whereby certain workers with disabilities would be granted an allowance if they submitted their disability certificate after a certain date - chosen by the employer in order to reduce the hospital’s liabilities to the State Fund - amounted to direct or indirect discrimination on the grounds of disability.
The regional court asked the CJEU whether different treatment occurring within a group of workers all of whom have disabilities amounts to a breach of the principle of equal treatment under Article 2 of the ETD.
Decision of CJEU
The CJEU first noted that the ETD is intended to protect workers with disabilities from discrimination on the ground of disability. Direct discrimination was not, however, limited to comparing workers who do not have a disability but also allowed for a comparison with workers who have a disability. Otherwise, as the court pointed out, the protection granted by the ETD would be diminished. As such, it confirmed that the principle of equal treatment enshrined in the directive protects disabled workers against discrimination on the basis of their disability compared with other workers who also have disabilities.
With regard to the claim of direct discrimination, the CJEU held that the practice could potentially be directly discriminatory if it was established that the submission of a disability certificate after a certain date amounted to criterion that was “inextricably linked to disability”. Although this was for the regional court to decide, the Court noted that the disability certificate gave rights to workers as a result of their disability status. Moreover, the hospital did not seem to have allowed workers with disabilities who had already submitted their certificates before the meeting to resubmit them or file new ones. That made it impossible for a clearly defined group of workers with disabilities to satisfy the condition of submitting their certificates after the meeting and this could well constitute direct discrimination.
With regard to the claim of indirect discrimination, it was again for the regional court to decide whether the practice of submitting a certificate by a particular date had the effect of putting people with certain disabilities at a disadvantage compared with people with other disabilities. It would especially need to consider whether workers with particular disabilities were put at a particular disadvantage. For example, those with visible disabilities or who required reasonable adjustments could be more likely to submit a disability certificate earlier, whereas workers with other disabilities or who did not immediately require adjustments had a choice about when to submit their certificate.
Although the facts of the case are particular to Polish law, the broad interpretation of comparators could potentially allow those with a certain type of disability to make a comparison with the way others, who have a different disability, have been treated in order to establish a discrimination claim. However, as this judgment was made after 31 December 2020, it is not binding on the UK courts although they may “have regard to it” where relevant.