Analysis: “Widening the pool of suitable comparators in EU non-discrimination law? VL v Szpital Klinicnzy” by Vera Pavlou
Can there be discrimination between two groups or individuals with a protected characteristic? In VL v Szpital Klinicnzy (C-16/19) the Court of Justice of the EU was asked to determine whether the notion of discrimination under the Employment Equality Directive (Directive 2000/78/EC) covers situations where an employer treats two groups of disabled employees differently. This is an important judgment with potential implications for other grounds of discrimination.
The case, which was referred to the CJEU by a Polish court, concerned the payment of an allowance to a group of disabled employees by the employer, a public hospital. Under Polish law, employers employing more than 25 workers are required to contribute to a State Fund for the integration of persons with disability. Employers can be exempted from paying contributions if a certain percentage of their workforce is composed of disabled employees. For the purpose of obtaining the exemption, the employer in this case decided to give an allowance to employees certifying their disability after a specific date; those employees who had already certified their disability were excluded from the allowance. Ms VL, a disabled employee who was excluded, brought proceedings against the employer challenging the measure as discriminatory on the basis of disability.
In its judgment, the CJEU first considered if the allowance can be considered ‘pay’ so as to fall within the Directive’s material scope (Article 3(1)c). Drawing on a broad understanding of ‘pay’ in earlier case law in the area of non-discrimination, the Court held that the allowance must be considered ‘pay’ for the purpose of the Directive. Then the Court turned to the issue of whether the differential treatment of disabled persons constitutes discrimination under the Directive (Article 2). Or does disability discrimination require comparison between on the one hand, persons with disability and on the other hand, persons without disability? To answer this question, the Court based its reasoning on three aspects: the wording, context and purpose of the Directive.
First of all, the very wording of Article 2(1) and (2) does not suggest that the notion of prohibited disability discrimination covers only situations whereby the differential treatment is between persons who possess the protected characteristic and those who do not. When it comes to the provision’s context, nothing in the directive suggests that the comparator in disability discrimination cases must be someone without the protected characteristic. Traditionally, to substantiate claims against discrimination, claimants would be expected to argue that they were unfavourably treated in comparison to another individual or group who is in a comparable situation but does not possess the protected characteristic. However, limiting the protection against disability discrimination to such situations would, as the Court held, frustrate the very purpose of the Employment Equality Directive, which is to establish a general framework to fight discrimination on several grounds in the context of employment. Here, the Court, following the Opinion of Advocate General Pitruzzella on this case, rejects a ‘formalistic’ understanding of discrimination in favour of a notion that is true to the Directive’s purpose. The notion of direct discrimination certainly still requires a comparison with a real or hypothetical comparator. Yet, VL v Szpital Klinicnzy establishes that the comparator need not be a person without the protected characteristic.
While VL v Szpital Klinicnzy concerns disability discrimination, it can have implications for other protected characteristics within the context of EU non-discrimination law by widening the pool of suitable comparators a claimant may draw from to substantiate a non-discrimination claim.
Vera Pavlou is a Lecturer in Labour Law at the University of Glasgow.