Introduction to EU Anti-discrimination Law

I am delighted to be here today to talk about the disability strand of the legal protection conferred in the EU by principally Directive 2000/78/EC.

The disability strand I think is particularly exciting for number of reasons. Firstly, the protection from discrimination of disabled people is a relatively recent phenomenon and we are moving away from paternalism, pity and sympathy for the disabled to the granting of substantive rights and equal treatment and the recognition of disabled people’s equal worth in society and their entitlement to full participation and inclusion in society. Secondly, there are particular issues thrown up in the field of disability discrimination because a formal approach to equality, to say that we must treat everybody the same, is not sufficient to provide protection for disabled people because by definition they are differently abled and are unable to do some of the things that people without disability can do and are not able to participate in quite the same way. So a very formal approach to equality will not confer substantive rights on disabled people.

I think it’s also worth reminding ourselves how many people in the EU, across the EU are disabled. Disabled people represent 80 million persons in the European Union. That’s more than 15% of the population. It is the equivalent of the population of Belgium, Czech Republic, Greece, Hungary and the Netherlands all together. One in four Europeans has a family member with a disability and six Europeans out of 10 know someone in close or more distant circles who has a disability. It is also a salutary reminder to look at the extent to which disabled people are excluded from the labour market and the more severe the degree of disability the lower the participation in the labour force. Only 20 per cent of people with severe disabilities compared with 68% for those without disabilities. People with disabilities are less likely than more than 50% to reach tertiary education compared to non-disabled people. 38% of disabled young people that is the age of 16-34 across Europe haven’t earned income compared to 64% of non-disabled people. And the statistics are pretty constant in each Member State. In the United Kingdom, for example, the statistics exactly mirror those across the wider EU.

What I am going to do today is to talk about some of the special features in the area of disability. I am going to talk about the United Nation Convention on the Rights for Persons with Disabilities. I am going to next talk about the definition of disability. Then I am going to talk about the duty of reasonable accommodation which is a specific right available only in the disability strand under the Directive. And then finally, I am going to talk abut some of the ECHR, that is the European Court of Human Rights’ case law.

The legal framework provided in Council Directive 2000/78/EC includes the prohibition against disability discrimination in its scope, and the concept of discrimination and the principle of equal treatment that’s set out in Article 2 applies to disability as much as it does in relation to all other strands, such as sex, sexual orientation, race, religion and belief. So too do the provisions concerning the burden of proof and victimisation. They apply equally to the disability strand but what I am going to concentrate on are the areas that are special to disability.

The United Nations Convention on the Right of Persons with Disabilities has a particular and special status within EU law and that is because this United Nations Convention has been adopted by the European Union itself. On 23 December 2010 the EU for the first time in its history became a party of itself to an international human rights treaty. Now what that means is the implication of ratification by the EU itself is that it must be read into Article 4 of the Council Directive by the EU organs including the CJEU, the Court of Justice of the European Union, and indeed all national courts in interpreting European law must seek consistency with the Directive 2000/78/EC and the UN Convention. So it brings the UN Convention right into the heart of EU law itself and is something that is to be relied on and used as an aid to interpretation amongst all nation states of the EU. And what the Convention does in addition to the Directive, which we will talk about in a moment, is its purpose to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities across a very wide scope of civic life. It covers voting rights, independent living, standards of living, social protection and indeed mobility. It is far wider then just work, and occupation and employment.

Although the focus of my talk today is on work and employment it is important to know that the UN Convention in fact goes wider than that. And it does two important things: It requires state parties to consult with and actively involve persons with disabilities in developing and implementing legislation and policies to implement the Convention and that seen as important of itself because it both empowers disabled people in the formulation of policies which affect them but furthermore, it increases the chance of ensuring that effective measures are introduced and the Convention places particular emphasis on issues of legal capacity, and the immediate and pressing need to protect persons with disabilities from violence and abuse where all the research shows that they are a particular vulnerable group to hate crime attacks. So what it also means is we have to look at the rights conferred by Directive 2000/78/EC through the prism and with the aid of interpretation of the United Nations Convention and we can get used to the Convention being referred to us by advocates in national courts at hearings throughout the EU.

Now next I want to talk a bit about the concept of disability. Because it is acknowledged that disabled people are less able to participate on account of their disabilities in the full range of life and the activities that those without disabilities are lucky enough to enjoy. Disability rights are asymmetrical and they provide protection for disabled people and in certain circumstances will introduce the right to a reasonable accommodation and adaptations for people who are disabled. So therefore it goes beyond equal treatment of treating everyone the same but making particular provision for people who are disabled. Now what that means is that the definition of disability, who meets that test and who doesn’t become absolutely crucial in understanding how far the scope of the right extends and who accesses it. So it is not surprising that one of the first cases on the disability strand referred to the CJEU concerned the scope of the definition. That was the case of Chacón Navas (C-13/05) a Spanish case, because the Directive itself does not define the term disability. Miss Chacón Navas was certified as unfit for work on grounds of sickness and was not in the position to return to work in the short term. She was then dismissed solely on grounds of sickness and the question which the Spanish court referred to the European court was whether dismissal solely on the ground of sickness amounted to disability discrimination and, if it didn’t, whether sickness should be introduced as an additional strand, an additional characteristic to be added to those in Article 1 requiring protection from discrimination. And what the European Court held was this: that the concept of disability must be given an autonomous and uniform meaning across the EU and it has a number of component parts. It must be understood as referring to a limitation which results in particular from a physical, mental or psychological impairment and that impairment must hinder the participation of the person concerned in professional life and that the limitation must be likely to last for a long time. What it said was that the meaning must be autonomous and uniform across the EU and is an EU wide definition. So applying that to the facts of the Chacón Navas case they said there is a distinction therefore between sickness and disability. The two concepts are not necessarily the same and there is no protection of itself from discrimination on grounds of sickness, but sickness may result in or amount to disability or it may overtime become a disability in accordance with the definition.

Now interestingly the UN Convention on the Rights of Persons with Disabilities provides a more expansive definition. It includes the concept that there must be an impairment, which must be physical, mental, intellectual or sensory. It must be long-term and it must hinder the person’s full and effective participation in society on an equal basis with others. But it introduces the following words in the definition, which describes the impairments ‘in interaction with various barriers’. So in other words the UN Convention definition looks at the medical model, the physical, mental, intellectual impairment, but then combines that with a social model by looking at the interaction with various barriers which may then hinder the effective participation of the individual concerned. In other words it focuses attention on the barriers created by society in the way that we organise work patterns, by the physical features of the environment, the office steps, the background auditory noise for example and sees them as part of the problem instead of it being the individual’s problem.

There is a leading disability rights campaigner in the UK, who is a wheel chair user and she describes going to the supermarket and seeing that the particular brand of cornflakes that she wants are on the top shelf. The supermarket manager sees her looking a bit perplexed, looking at the row of the shelves of food and patronisingly ruffles her hair and says ‘what’s the matter with you dear’ and she says ‘the matter with me is that the cornflakes are over there’ pointing to the top shelf where she clearly can’t reach them and it seems to be a very telling example that it is not the person’s fault, it’s the way we organise the things around people that is often the problem and the interest amongst disability rights campaigners is the way in which the UN Convention now includes a reference to the social aspect, the interaction with various barriers in the definition of disability itself and there are two pending cases before the CJEU, where the full scope of the definition of disability is likely to be tested. The first one is Bundesrepulik Deutschland v Karen Dittrich (C-124/11), where the question arises of whether in the case of illness, whether illness is covered by the definition of disability, where national legislation on that ground of assistance of public servants is granted in cases of illness but not otherwise. And the second case is Jette Ring (Case C-335/11), a Danish case which is looking at incurable illnesses, whether they amount to disability and whether conditions caused by a medically diagnosed temporary illness amount to a disability and thirdly, whether there is a reduction in functional capacity that does not require any auxiliary aid, whether that is sufficient to meet the test of disability and what it will be interesting to see is the extent to which the UN Convention definition will be used in the Court of Justice to inform and understand the definition of disability.

Now next I want to talk about the reasonable accommodation duty itself. As I’ve said an important aspect of providing rights for disabled people in law includes the right in certain circumstances to reasonable accommodation and it provides for different and special treatment of disabled people so they can fully participate in society. Now this right finds form in Article 5 of Directive 2000/78/EC and provides that in order to guarantee compliance with the principle of equal treatment in relation to persons with disability reasonable accommodation shall be provided and it requires employer to take appropriate measures where needed in a particular case to enable a person with the disability to have access to, participate in or advance in employment or to undergo training and that will be required unless such measures would impose a disproportionate burden on the employer. So therefore if the employee or the person who is seeking employment shows that he or she is hindered in participation in the workplace the employer must show that they have complied with this reasonable accommodation duty unless the burden of doing so is disproportionate.

Now there is considerable overlap between the reasonable accommodation duty and the general duty of indirect discrimination and both apply in the field of disability discrimination but the interesting feature of the reasonable accommodation duty is that it provides individual rights and requires individual accommodation specific to the particular circumstances of the disabled employee so that the employer must consider how the problem can be overcome. So, for example, if it requires the installation of a ramp to enable a disabled person, who is a wheelchair user, access to the office, then they must make that adjustment, that accommodation for that individual, unless to do so would be disproportionate. So therefore it looks at specific cases, whereas indirect discrimination will look at the wider issues of anyone who might be thinking of applying to a workplace or anyone who might be an employee and is said to be a right at large rather than specific. Now surprisingly there has yet been no CJEU case law on the scope of the reasonable accommodation duty. But there are two cases pending. The first one is infringement proceedings brought by the Commission against the Italian Republic, which seeks a declaration that by not placing all employers under an obligation to make reasonable accommodation for all disabled people, the Commission wants a declaration, that the Italian Republic has failed to implement Directive 2000/78/EC correctly and if that case is successful, which I think it’s very much likely to be, then that will really strengthen and reinforce the importance of the right. The second pending case is the case of Jette Ring v DAB (Case C-335/11) , which I have mentioned earlier in the context of disability and that asks the question whether a reduction in working hours is among the measures covered by Article 5. In other words if a disabled person because of their disability is unable to work full time would it be a reasonable accommodation to reduce the hours of that individual and the questions posed in that case also include the question of whether someone has been dismissed following a failure by an employer to make a reasonable accommodation. What is the position where the dismissal has been caused by that failure and can you then take into account the fact that there has been a failure to make a reasonable accommodation in considering the legality of the dismissal itself. So watch this space for more case law, or some case law on the scope of the reasonable accommodation duty and again it will be interesting to see how the UN Convention on the Rights for Persons with Disabilities will be preyed in aid and used to inform the debate before the CJEU because the UN Convention defines the failure to make reasonable accommodation as a form of discrimination itself in its own right and therefore further elevates the status of this important part of the protection provided by the Directive.

Now finally I want to talk a bit about the recent case law form the European Court of Human Rights in this area because there have been some interesting developments and increasingly. Not only because of the UN Convention that as I say has to be read into EU law now on account of the Convention having been ratified by the EU itself, but also the general trend in the case law of the CJEU and the ECHR to refer to each others’ judgement and to build a comprehensive set of rights that complement each other, it’s worth looking at three cases that the European Court of Human Rights has recently considered in the context of disability.

The first one is Glor v Switzerland (ECHR 30-4-2009) where Sven Glor was found by the European Court of Human Rights to be protected on account of his diabetes under Article 14 and the exercise of his private life under Article 8. His diabetes deemed him medically unfit for military service yet not severely enough to relieve him from paying a military service exemption tax which was a pretty significant amount over several years and the European Court of Human Rights, ECHR I will refer to it as, found that there had been a violation of his Convention rights and using and relying on the UN Convention of the Rights for Persons with Disabilities was very critical of the Swiss government for failing to provide a reasonable accommodation to Mr. Glor’s individual circumstances.

The ECHR then built further on the Glor decision in its 2010 judgment of Alajos Kiss v Hungary (ECHR 20-5-2010) and in that case the applicant had manic depression and for that reason was placed under partial guardianship and under the Hungarian Constitution there was a blanket ban, which prohibited him, an absolute ban violated his right to vote in elections because of this being under partial guardianship and the European Court said it breached the ECHR Convention again relying on the UN Convention for the Rights of Persons with Disabilities because it failed to take an individual judicial evaluation of the extent to which Mr Kiss was impaired in his ability to vote.

The third and the last case I am going to mention is a case brought against Russia by Mr Kiyutin (ECHR 10-3-2011) and this is a particularly fascinating case because Mr Kiyutin was HIV positive and on account of being HIV positive he was denied Russian residency for which he would otherwise have been eligible. Mr Kiyutin was a Uzbek national but has a Russian wife and a child in Russia and he’s lived there for some time but as part of his application for residency was required to take a HIV test which is not a test that would have otherwise been applied to him and it was found that he tested positive. And what the European Court of Human Rights said was that they were entitled to take account of the stigma surrounding HIV status in reaching a conclusion that it violated his rights of Article 8 and Article 14 and readily accepted that the ignorance about how the HIV disease spreads bred prejudices which in turn stigmatised and marginalised those who carried the virus and it reinforced other forms of stigma such as racism, homophobia and misogyny. So it is interesting that the court was very willing to engage in an understanding and analysis of the social side of disability and the prejudice that Mr Kiyutin was exposed to went beyond the mere medical test of HIV because it took account of the social stigma attached to that condition as well, which again I think was partly in light of the UN Convention on the Rights of Persons with Disabilities definition of disability and allowing them to take that expansive model.

So where we’ve come to then, in the short space of time, it’s only since 2006 that rights for disabled people were fully enforceable under Directive 2000/78/EC and just this five and a half years we can see disability rights have become a long way and have further been strengthened by the UN Convention and the appetite for both the CJEU and the European Court of Human Rights to take disability rights seriously and to interpret them in way that will entitle disabled people to full participation where possible in the fields of work, employment and occupation and indeed beyond, which is beyond the scope of this talk. So thank you every much indeed for listening to me and it’s been a pleasure to address you today. Thank you.