Differentiating between two groups with the same protected characteristic may amount to indirect discrimination. However, does this apply in the UK?

Dentons

VL was a psychologist working in a hospital in Krakow. In December 2011 she obtained a certificate confirming her disability, which she submitted to her employer (the Hospital) that month. In 2013, the Hospital decided to pay a monthly allowance of 250 Polish złoty (approximately €60) to employees who submitted a certificate attesting to a disability. The relevant date for the grant of the allowance was the date on which the certificate was submitted, rather than the date on which the certificate was obtained. This meant that the allowance was granted to 13 employees who submitted certificates after the grant was announced. However, it was not retrospective as the intention was to increase recruitment. The 16 employees who had already submitted their certificate, including VL, were therefore not entitled to the allowance.

The Polish appellate court asked the Court of Justice of the European Union (CJEU) to consider whether, in treating two groups of workers with the same protected characteristic (in this case disability) differently, the employer had breached the principle of equal treatment.

The EU law

The Equal Treatment Directive form 2000 established a general framework for equal treatment in employment across the EU. It defines indirect discrimination as occurring "where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:

(i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary … "

The UK already had the Disability Discrimination Act in place prior to the enactment of the EU Directive. However, the UK government was obliged to take the wording of the Directive into account when formulating a definition of indirect discrimination under the Equality Act 2010 (the EqA). Section 19 of the EqA states that "a person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. A provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if—

  1. A applies, or would apply, it to persons with whom B does not share the characteristic,
  2. It puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
  3. It puts, or would put, B at that disadvantage, and
  4. A cannot show it to be a proportionate means of achieving a legitimate aim.

Advocate General's opinion

The Advocate General considered whether the Equal Treatment Directive allows the use of a group with the same protected characteristic as a comparator. He noted that the purpose of the Directive is to "lay down a general framework designed to guarantee equal treatment in employment and occupation to all persons, by offering them 'effective protection against discrimination on one of the grounds covered by Article 1'." He also considered the European Commission's position in VL's case which admitted that it is, in the abstract, possible that the Directive can apply "within groups of disabled persons".

The Advocate General concluded that the Directive should be interpreted as allowing a comparison between individuals groups sharing the same protected characteristic. The Directive simply refers to the comparators as being "other people" with no requirements about their characteristics. In his view, the employer's date of certificate criteria was illogical and lacking in objectivity. As only a disabled worker could obtain a certificate, the criterion was inextricably linked to the protected characteristic of disability. As such, it was necessary to prevent two "like groups" from being treated differently because of an apparently neutral criterion intrinsically linked to a protected characteristic.

The position in the UK

The interpretation of the Advocate General is problematic in the context of the definition of indirect discrimination under the EqA. This is because the EqA clearly states that indirect discrimination requires a comparison with persons who do not share the characteristic. In addition, section 23(1) of the EqA states, that for the purposes of establishing the relevant comparator, "there must be no material difference" between the circumstances of those in the claimant's group and the comparator's group. This suggests that the only difference between the two groups should be the protected characteristic relied upon. As such, there is an argument that the UK definition of indirect discrimination may not be compatible with the EU Directive.

Comment

So far, the UK tribunals have not tried to apply the Advocate General's opinion into our domestic system. It would be premature, however, to conclude that the EqA and the Equal Treatment Directive are not compatible, especially given the Advocate General's comment that the purpose of the Directive is to "lay down a general framework designed to guarantee equal treatment in employment."

It is also important to keep in mind that the opinion is not binding on the CJEU. We are yet to see if the CJEU will share the Advocate General's view and, if so, to what extent. With Brexit looming, it seems unlikely that this opinion will have a significant impact on the existing case law or that it will necessarily require any changes in the EqA. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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