In a judgment of 26 January 2021, the Court of Justice of the European Union ("CJEU") interpreted Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (hereinafter "the Directive"). The Directive is intended to ensure equal treatment in employment and occupation through a prohibition on direct and indirect discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and working conditions, including dismissals and pay.
The case brought before the CJEU concerned the grant of an allowance by a Polish employer to a group of employees who shared a common characteristic, namely they were all disabled, provided they submitted a disability certificate after a specific date chosen by the employer. This had the effect of denying the benefit of the allowance to disabled employees who had submitted a certificate before this date. The purpose of the allowance was to encourage disabled employees who had not yet submitted a disability certificate to do so, in order to reduce the employer's contributions to a state fund.
In addition, it turned out that most employees with more serious disabilities had submitted a disability certificate before the chosen date, due to the fact that their disabilities were visible or required reasonable adjustments to their working conditions. Consequently, many employees with more serious disabilities did not qualify for the allowance.
This practice was challenged in court, claiming that it constituted prohibited discrimination on the ground of disability.
The Polish court asked the CJEU for a preliminary ruling to determine whether a difference in treatment within a group of employees, defined with reference to a ground for protection set out in the Directive (i.e. disability), breaches the principle of equal treatment if those employees are not treated less favorably than employees who do not fall within this group (i.e. employees without a disability).
In practice, disability discrimination is often defined as the treatment of disabled persons less favorably than persons who are not disabled.
The CJEU ruled, however, that the principle of equal treatment does not apply to a particular group of persons but rather with reference to the grounds exhaustively listed in the Directive (i.e. religion or belief, disability, age or sexual orientation). Accordingly, the Directive protects disabled persons against discrimination or unequal treatment compared to other disabled persons.
In summary, the CJEU held that a difference in treatment based on any of the grounds for protection listed in the Directive (including disability) occurring within a protected group of persons violates the principle of equal treatment in employment and occupation, as set out in the Directive.
Therefore, when a new policy or measure is put in place, it is not sufficient to verify only whether the policy or measure discriminates against a protected group. It is also necessary to verify systematically whether it results in discrimination within a protected group.
