The Advocate General has issued a preliminary ruling for the ECJ in VL (Case C-16/19) regarding the potential for comparisons to be drawn between the treatment of one group of people with disabilities with a second group of people with disabilities. While the ruling is not binding on the court it does give an indication as to legal context the court should consider when making its decision.

The case before the ECJ, which the AG was asked to consider, concerns a Polish hospital as the employer. The hospital had to make regular contributions to a disability fund. Its contributions would be reduced if it could demonstrate that it had increased its number of disabled employees. The disability fund contribution rate was determined by how many employees held an appropriate certificate of disability. A number of the hospital’s staff had already obtained such a certificate and submitted it to their employer. The employee who had raised the claim was one such employee.

 The employer needed to encourage more of its employees, who had relevant disabilities, to obtain and submit a certificate of disability. They introduced a financial incentive scheme worth approximately £60 per month payable to those who obtained their certificate after the scheme was introduced. Those who had submitted their certificate before the scheme was introduce were not eligible for the payment.

Under Polish law, the employee raising the claim had not been discriminated against as she had not been treated less favourably that a non-disabled employee. The employer’s practice was deemed to be based on a ‘neutral’ criterion i.e. the date that the certificate was obtained, not the disability as such. However the Employment Equality Framework Directive (on which the UK’s equality legislation is based) prohibits the practice.

A claim of direct discrimination would fail as there was no direct link between disability and not getting the incentive. Some people with disabilities received the incentive, while others did not.

Essentially, the difference in treatment is indirect discrimination – a meeting arranged specifically to encourage employees to acquire a disability certificate so that the hospital could reduce its contributions to the disability fund. The incentive scheme was related to a person’s disability as only a disabled employee could get the required certificate. The scheme was not about positive action for those with disabilities, but rather about reducing the financial burden of paying into the fund. The incentive scheme was aimed at groups of employees, those who had not yet obtained and submitted a certificate of disability and those who had done so before the incentive was introduced.

A claim of direct discrimination would fail as there was no direct link between disability and not getting the incentive. Some people with disabilities received the incentive, while others did not.

The AG’s position is that the Directive should be interpreted so that differing treatment of situations within a group defined by a protected characteristic (in this case disability) may constitute a breach of the principles of equal treatment. Such a breach may occur if:

1. The employer treats individual members of that group differently on the basis of an apparently neutral criterion;
2. That criterion is inextricably linked to the protected characteristic
3. That criterion cannot be objectively justified by a legitimate aim and the means of achieving that aim are not appropriate and necessary.

The outcome of the ECJ case will still have an impact on UK cases despite our withdrawal from Europe. Under the terms of the European Union (Withdrawal) Act 2018, all laws derived from the EU continue to be valid after the UK leaves the EU. So all our current laws that were implemented based on European Directives will remain in force until amended or repealed by the UK Parliament. What is more, as long as they remain in place, they will continue to be interpreted in line with EU law. This means that there will be no change to the way in which the UK courts interpret the entitlement to equal treatment. Even decisions of the ECJ taken after Brexit will continue to affect the way in which UK courts interpret the Equality Act 2010. So if the ECJ follows the AG’s opinion, which is fairly common, we will need to consider the implications for comparisons within protected characteristic groups, not just comparisons with those outside of the protected characteristic group. One currently high profile area that this may impact is that of transgender and applying criterion based on a stage of transfer to the preferred sex.