Can you bring a claim for disability discrimination if you compare yourself to another disabled person?

Yes held the European Courts of Justice in VL (C-16/19).  

A Polish hospital collected disability certificates from its staff, so that it could reduce its liability to contribute to a disability fund.  It established a new policy where it offered a monthly allowance of approximately €60 but only to those disabled workers that submitted new disability certificates after the policy came into effect.  There was no allowance given to those disabled workers who had previously submitted their certificates.

The court held that this was direct discrimination, because by not paying the allowance to the previously certified disabled workers was less favourable treatment to those disabled people who subsequently provided certificates in accordance with the new policy.  The new policy was inextricably linked to the disability of those refused the allowance based on the point in time when they had provided their certificate, nor had the hospital given an opportunity to these disabled workers to resubmit their certificates. 

When coming to its decision, the court drew analogies to other cases where it had held that a difference in treatment based on workers’ marital status being a criterion for eligibility of a benefit and not expressly on their sexual orientation was still direct discrimination on the basis of sexual orientation discrimination because only persons of different sexes could get married making it impossible for gay workers to apply.  It also compared this case to when it had previously held that a difference in treatment of workers based on their entitlement to an old-age pension and not expressly on age, constituted direct discrimination in so far as the entitlement was subject to a minimum age requirement and that difference in treatment was based on a criterion inextricably linked to age. 

The court also said that this could be indirect discrimination if it put some disabled workers at a particular disadvantage over another group of workers.

The case has now been remitted back to the local courts.

This is a very interesting case – it is counterintuitive to think that another disabled person can be the comparator in order to make a claim for direct discrimination, but this case shows that who you can compare yourself to is potentially a wider group than normally envisaged and careful consideration should be given when presenting a claim.

At didlaw we can help you navigate your employment situation.  The best advice is to seek legal advice at an early stage.

This blog is by Anita Vadgama, Legal Director at didlaw