Can disabled workers compare themselves to other disabled workers for the purposes of a discrimination claim under the Employment Equality Directive? And if an apparently neutral rule disadvantages some disabled workers as compared to others, can this potentially ground an indirect discrimination claim? These were among the questions addressed by the CJEU in the Polish case, VL v Szpital Kliniczny im. dra J. Babińskiego Samodzielny Publiczny Zakład Opieki Zdrowotnej w Krakowie.

Facts of the case

The case was brought by VL, a psychologist working in a Polish hospital, who had submitted a disability certificate to her employer in 2011. In 2013, the employer announced that any worker submitting a disability certificate after that date would receive an additional monthly allowance. The employer wished to increase the number of workers with certified disabilities to reduce a legal obligation to contribute to a State disability fund. VL argued that distinguishing between disabled workers based on an arbitrary certificate submission date amounted to disability discrimination.

Important issues

The case raised several important issues. First, if disabled workers could not compare themselves with other disabled workers for equality purposes, employers could hire selectively based on disability type or severity, a phenomenon known as cream skimming. This would significantly disadvantage disabled workers with stigmatised conditions, or who might need more extensive accommodations, as the employment of other disabled workers would rebut claims of disability discrimination. Second, if inter-disability comparisons were accepted, would it require comparison between specific conditions or categories of disabilities, which might be difficult to prove? Third, the argument that applying a cut-off date for submitting a disability certificate was inherently neutral ignores the fact that only disabled workers were eligible to obtain a certificate, and that the certificate gave rise to specific disability-related employment rights. This suggests direct disability discrimination. Alternatively, a ‘disability plus’ analysis might apply: to qualify for the allowance, employees had to have a disability and submit a certificate after a certain date. Could this ground a direct discrimination claim? Finally, if regarded as neutral, the submission criterion might ground an indirect discrimination claim if it disproportionately impacted workers with certain types of disabilities.

The judgment

Adopting a purposive approach, the CJEU confirmed that the prohibition of discrimination on the disability ground is not limited to differences in treatment between workers with and without disabilities, but can include less favourable treatment of some disabled workers as compared to others. However, the workers must be comparably situated and, for direct discrimination, the difference in treatment must be disability-based or based on a criterion inextricably related to disability. This was for the national court to determine. If the national court determined that the difference in treatment resulted from an apparently neutral requirement, it must still consider if this disadvantaged workers with certain disabilities as compared to workers with other disabilities (and accordingly potentially constitute indirect discrimination). Importantly, the CJEU indicated that this might arise where workers with certain disabilities had effectively been obliged to submit disability certificates earlier, for example because their disabilities were visible or to obtain reasonable adjustments. These workers might be disadvantaged compared to workers with hidden conditions or who did not immediately require adjustments, who might not have needed to submit a disability certificate until an allowance was offered. The CJEU therefore both upheld the possibility of inter-disability comparison and indicated that such comparisons should be broadly construed. The significance of this for disability discrimination claims cannot be overstated. However, despite the apparent broadening of comparative pools for indirect disability discrimination, application may still prove challenging as hidden, undeclared and multiple disabilities may make it difficult to identify group members.

The decision also casts an interesting light on the potential for intersectional discrimination claims, previously rejected in Parris. VL focused on a single ground (disability) and the potential for a ‘disability plus’ argument (albeit based on a temporal criterion rather than an additional discriminatory ground) was not explored. Instead, the Court reiterated the need for a link between the discriminatory ground and the disadvantage or criterion for a direct discrimination claim, or, as in Odar, offered an indirect discrimination solution to what might be better regarded as an intersectional claim. Nevertheless, the Court’s recognition of inter-disability disadvantage suggests what Fredman terms a capacious understanding of disability, which might support future recognition of intersectionality.