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Article 14 of the European Convention: What is 'discrimination'?

This page gives a very broad outline of what is seen as 'discrimination' under Article 14 of the European Convention on Human Rights. It picks out particular points, without trying to cover the area fully. For Article 14 in general, see the main European Convention page.

Basic meaning of discrimination

"Discrimination" has its own meaning in Article 14 of the Convention, and thus in the Human Rights Act 1998. It means broadly "treating differently, without an objective and reasonable justification, persons in analogous, or relevantly similar, situations" (quote from Kiyutin v Russia).

However, in more recent years 'discrimination' has also been held to go beyond this - see below on Indirect discrimination and Treating difference appropriately.

Justification

The justification must be objective and reasonable. In other words, it must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised.

The State enjoys a "margin of appreciation" in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The margin of appreciation means basically the State's 'range of discretion'.The scope of this margin will vary according to the circumstances.

Higher threshold to justify disability

It seems to be more difficult to justify treating someone differently on grounds of disability (but not to justify treating them the same). The State has a substantially narrower discretion and "very weighty reasons" may be required. See below Justification: "Very weghty reasons".

Justification and reasonable adjustments

In deciding whether different treatment is justified, it is relevant whether the aim could have been achieved through other means. This can effectively mean that it is relevant whether "reasonable adjustments" could have been made. See below Glor.

Treating difference appropriately: Thlimennos

'Discrimination' within Article 14 of the Convention has been held to include treating significantly different situations in the same way, without justification. Not only should like situations be treated alike, but different situations should be treated differently. The UK courts have applied this to failure to take account of the different needs of disabled people.

Thlimmenos v Greece (link to bailii.org), 2000, European Court of Human Rights (ECtHR)
The ECtHR held that Article 14 is not limited to cases where a State treats differently persons in analogous situations without providing an objective and reasonable justification. Article 14 "is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different" (para 44 of the judgment).

In that case, the complainant was refused an appointment as a chartered accountant because of a felony. He had refused to wear a military uniform (and was therefore guilty of insubordination), but this was because he was a Jehovah's witness. He argued successfully that a distinction should have been made between offences committed exclusively because of a religious belief and other offences.

Burnip v Birmingham City Council, Court of Appeal, 2012.
UK housing benefit rules were found to infringe Article 14. The rules did not allow for the fact that in some cases a person's disability would mean they required an extra bedroom, eg for a carer. The Court of Appeal accepted that Thlimmenos applied. The housing benefit rules failed to reflect the different needs of disabled people, and the court decided this was not justified. The court held that Thlimmenos was not barred from applying by the fact that the case involved a positive obligation to allocate resources.

AM (Somalia) v Entry Clearance Officer (lnk to bailii.org), Court of Appeal 2009
Prior to Burnip, this was a case on immigration rules. The court held there was discrimination on grounds of disability within Thlimmenos, but the claim failed because the failure to treat disabled people differently was justified.

The Court of Appeal in Burnip said that particularly 'weighty reasons' (below) would not be required to justify this type of discrimination, or indirect discrimination (below).

Indirect discrimination

'Discrimination' within Article 14 of the Convention has also been held to include indirect discrimination.

DH v Czech Republic (link to bailii.org), 2007, European Court of Human Rights (ECtHR)
This case concerned Roma children being shunted into 'special' schools for those with learning difficulties. The ECtHR confirmed that a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a racial or ethnic group. Intent was not required. The court also talked about shifting the burden of proof: where the applicant established a rebuttable presumption that the effect of a measure or practice was discriminatory, the burden shifted to the State to show the difference in treatment is not discriminatory.

A judge in UK Court of Appeal has commented that the actual facts of DH might more accurately be seen not as indirect discrimination, but as direct discrimination through stereotyping. However, the formula adopted by the ECtHR in D.H. was capable of encompassing traditional concepts of indirect discrimination, and the formula had been repeated in subsequent ECtHR cases, such as Opuz v Turkey (Elias LJ at para 40, AM (Somalia) v Entry Clearance Officer (lnk to bailii.org), 2009).

Suggested distinction between Thlimennos and indirect discrimination

In AM (Somalia) v Entry Clearance Officer (link to bailii.org), Court of Appeal, 2009, Elias LJ (from para 34) discussed what he saw as the difference between the Thlimennos type of situation (treating different situations differently) and traditional 'indirect discrimination'. It is not clear whether the ECtHR would adopt the same analysis. (Note in any event it is not necessarily important to distinguish what type of discrimination something is: Court of Appeal in R (MA and Ors) v Secretary of State for Work and Pensions (link to bailii.org), Feb 2014, particularly para 46). As I understand the judgment of Elias J in the AM (Somalia) case:

Indirect discrimination

In traditional indirect discrimination (above), an apparently neutral rule/practice adversely affects a particular group, and may be unlawful if unjustified. Elias LJ sees this is an application of the principle that like situations must be treated alike (somewhat conterintuitive, but see para 41 of the judgment). The rule as a whole is suspect, and it is the rule as a whole that must be justified. If it is not justified, it may not be possible to apply the rule to anyone.

Example: An employer insists that employees be full-time. This requirement disproportionately has an adverse effect on women because they are more likely to have childcare responsibilities. Assuming the employer's insistence on full-timers is not justified in the circumstances, it will therefore be indirect discrimination against women. However, it may then not be possible for the employer to apply the rule at all - it may be direct discrimination against men with childcare responsibilities to allow part-time working only for women with childcare responsibilities. .

Thlimmenos discrimination: Treating different situations differently

On the other hand, when it comes to treating difference appropriately within Thlimennos (above), as explained by Elias LJ the rule as a whole may serve a legitimate function and be justifiable in most circumstances. However there is a failure to create a special rule for people such as the claimant. The special rule may take the form of an exemption to the general rule. As regards justification, the issue is not whether the rule as a whole is justified, but whether the failure to draw the distinction is justified. Claims may be for a form of indirect discrimination, in that the special rule may be sought for a characteristic related to the protected status (eg inThlimennos a special rule for pacifists, rather than religion itself).

Example: The housing benefit rules setting out how many bedrooms a household is taken to need may well be justifiable for most families. However, a special rule is required for some people with a disability as in the Burnip case, for example if an overnight carer is needed.

Reasonable adjustments

The types of discrimination in the previous two headings may effectively require reasonable adjustments to be made. Two further cases illustrate how a duty to make adjustments may arise:

Glor

In Glor v Switzerland, a relevant factor in the European Court of Human Rights holding differential treatment not to be justified was that a measure might have ben adopted which had less impact on the fundamental right but achieved the same aim. In that case the claimant was seen as unfit for military service due to his diabetes. The court questionned why he could not be given a less physically demanding role within the armed forces, and pointed out that some States provided roles within the armed forces to those with a partial incapacity. Civilian service was another possibility.

In other words, in holding treatment to be unjustified, the court in Glor effectively considered reasonable adjustments that might have been made which would have enabled the claimant to do military or civilian service, and so not pay the military exemption tax he was objecting to.

Price v UK

There was held to be degrading treatment under Article 3 where there was serious lack of provision in a police cell and prison for a disabled person. See Scope of European Convention: Article 3.

Justification: "Very weighty reasons"

In direct discrimination cases it may be more difficult to justify treating someone differently on grounds of disability. The State may have a substantially narrower discretion and "very weighty reasons" may be required. How far this goes in the disability field is perhaps not yet clear. However, Kiyutin v Russia (2011) applied this approach to HIV positive status, and in that case the European Court of Human Rights listed those suffering different treatment on account of their "mental faculties" (in Alajos Kiss) or "disability" (in Glor) as among similar 'vulnerable groups' which the court had identified in the past. Follow the link to the case for the full quote.

Alajos Kiss v Hungary (2010) was not actually an Article 14 discrimination case. However, similar principles were applied in deciding whether it was justified to bar from voting mentally disabled people who were under partial guardianship.

In Glor v Switzerland (2009) dealing with a 'minor' disability, diabetes, the court commented that requiring the claimant to pay a military service exemption tax after refusing him the possibility of performing military (or civilian) service could be seen as inconsistent with the need to combat discrimination against disabled people and to promote their full participation and integration in society. Accordingly the State's margin of appreciation in setting a different legal treatment for disabled people was heavily reduced.

Does not apply to failure to treat disabled people differently or benefits cases

Failure to treat disabled people differently

The UK Court of Appeal has said that particularly weighty reasons would not be required to justify treating disabled people the same as others, as opposed to treating then differently: AM (Somalia) v Entry Clearance Officer (lnk to bailii.org), 2009, paras 15-16 and para 61; and Burnip v Birmingham City Council, 2012.

This would apply for Indirect discrimination and for Treating difference appropriately within Thlimennos.

Benefits cases

As regards discrimination in relation to state benefits, the Supreme Court has held that the court will generally respect the legislature's policy choice unless it is "manifestly without reasonable foundation" (Humphreys v HMRC [2012]). So the state has a wide margin of discretion.

This was followed in R (MA and Ors) v Secretary of State for Work and Pensions (link to bailii.org), Court of Appeal, 2014, a case about disability discrimination in housing benefit. Here the court held the justification defence was satisfied.

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Last updated 28th May, 2012 (part update 8th September, 2014)