The comparator issue
Direct discrimination is defined in the Equality Act 2010 as where one person treats another less favourably “because of a protected characteristic”. This requires that there is a ‘comparator’ to show the less favourable treatment. That is usually someone in similar circumstances as the claimant, except that they do not have the protected characteristic, which it is alleged is the reason for the less favourable treatment.
The Polish case of VL v Szpital Kliniczny concerned disability discrimination, which usually would mean the claimant had named a comparator who was not disabled. When she instead claimed that she had been subject to direct discrimination because she was treated less favourably than certain other disabled employees, the Polish courts asked the European Court of Justice (ECJ) for a ruling as to whether it was possible to establish direct disability discrimination in these circumstances.
Facts of the case
The Polish Labour Code creates an incentive to employ disabled people by imposing a levy on employers where disabled people make up less than 6 per cent of their workforce. The closer the employer is to 6 per cent, the lower the levy. An employer can only register one of their employees as disabled if they have been certified as disabled and have provided a certificate confirming this to the employer.
The claimant in this case, VL, was a psychologist employed by the Dr J Babiński Clinical Hospital. In December 2011 she had given her employer a disability certificate. In late 2013, the hospital introduced a policy to encourage more employees to apply for disability certificates through which new employees who were certified disabled would qualify for an additional monthly allowance. When VL became aware she would not qualify for the allowance as it applied only to employees who had been certified as disabled since 2013, she complained of disability discrimination.
The court’s decision
The ECJ considered that the intention of the EU Equal Treatment Framework Directive was to protect workers with disabilities against any discrimination on the basis of that disability. Direct discrimination would arise where one person was treated less favourably than another in a comparable situation on the grounds of disability.
As a matter of general principle this could include a difference in treatment within a group of people who have disabilities. In such circumstances direct discrimination may be established where an employer applied a condition that was inextricably linked to disability that could not be met by some of the employees. The question of whether the requirement was inextricably linked to disability on the facts of this case was referred back to the Polish national courts to decide.
Key points and impact
The wording of the equality act and the directive is so similar that while ECJ decisions are no longer binding on the UK employment tribunals and courts, this decision may still have persuasive impact.
However, in practice it will be extremely rare that a claimant will want to rely on the treatment of another disabled employee for the purposes of establishing that they have been subject to direct disability discrimination. While it may be possible for a claim to succeed in such circumstances, it would also make it easier for an employer to explain that the reason for the treatment was something other than the disability. A claimant in the UK may be better placed by bringing a claim for discrimination ‘arising from disability’, which does not require a comparator even if it may be defended on grounds of justification.
Chris Thompson is an employment partner at Gateley Legal