Comparators in disability claims

VL v Szpital Kliniczny 

Direct disability discrimination usually involves comparing the treatment afforded to one worker with another and showing that the treatment is less favourable because of the ‘protected characteristic’. When that protected characteristic is disability a comparison is usually made with a worker without a disability. In the case of VL v Szpital Kliniczny the European Court of Justice has held that direct discrimination might also be established by comparing treatment between workers with disabilities. 

A claim of discrimination

In Poland, employers pay a levy where disabled people make up less than 6% of their workforce. The employer in this case introduced an additional monthly allowance for employees who certified themselves as disabled. However disabled staff who had already provided certificates of disability were not entitled to the allowance. VL had provided a certificate of disability some two years earlier and complained that it amounted to discrimination to exclude her from receiving the new allowance.

What was the decision?

It was held that the Equality Directive is intended to protect workers with disabilities against any discrimination on the basis of that disability, not only as compared with workers who do not have disabilities but also as compared with other workers who have disabilities. If the treatment was based on a criterion which was inextricably linked to the person’s disability it would then constitute direct discrimination.