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EU Court: Equal treatment for all, also among minorities

| Text: Kerstin Ahlberg

Can it be discrimination if an employer favours one person over another if both have some sort of disability? Yes, says the EU Court of Justice in a new ruling. The ban against discrimination does not apply only in relation to persons who are not disabled.

There are several EU directives on the equal treatment of people which combine to ban discrimination based on gender, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Most often we think of discrimination as treating people with a certain ethnic background, from a certain religion or with a particular sexual orientation less favourably than people of other ethnic backgrounds, religions or sexual orientation (who usually belong to the majority).

In this case, which centred on a hospital in Poland, the situation was the opposite. The employer treated some workers with disabilities differently from other workers with disabilities.

The motivation was economic. Anyone employing 25 or more people in Poland must pay a fee to a state fund for the rehabilitation of people with disabilities. That is the starting point. But employers who have at least 6% disabled workers do not have to pay the fee. An employer who wants to prove it has enough workers with disabilities to qualify for this must be able to present certificates from these employees. 

16 hospital workers had presented such certificates. But this was fewer than the employer needed in order to avoid the fee. In order to encourage more employees to present disability certificates, the hospital director decided to offer an extra monthly allowance to all workers who would do this by a certain date. 13 people did. Those who had presented their certificates before this date had no extra allowance and were also not allowed to present new certificates.

The employer’s defence was that the point had been to save money and that if everyone got an allowance there would probably be no savings made at all. The hospital also argued that those who complained were not discriminated against according to the law, because they were comparing themselves to other employees with disabilities. 

But the EU Court did not agree with the employer. 

Although this ruling covered disabilities, the Court’s conclusion also applies to the other causes of discrimination. Homosexuals can be discriminated against in relation to other homosexual employees, for instance. The point is that the negative special treatment must be a consequence of the person’s sexual orientation and nothing else. 

In this particular instance, this could be the case, argued the EU Court. When employees hand in disability certificates they are also awarded certain rights in the workplace according to the law.It was therefore feasible that the 16 people who did so before the date set by the employer, had disabilities that were particularly visible or required certain adjustments  in the workplace, while the other workers’ disabilities were less severe or did not call for immediate adjustments at work. In that case, the workers’ disability was the only reason behind the discrimination.


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