Discrimination – July 2020

Did you know that you can discriminate against one group defined by a protected characteristic by comparison with treatment of other people defined by the same protected characteristic?

In this case, a disabled Polish employee was denied a supplementary payment paid by her employer to other disabled employees for the sole reason that they had submitted their disability certificate on a date prior to a meeting between staff and management. At this meeting, the employer aimed to bring about an increase in the number of disabled workers to obtain a reduction in its contribution to a disability fund. The company promised a supplementary payment to employees who produced a disability certificate at the date of the meeting. Those who had already provided their certificate were offered nothing. An employee who had not received the supplementary payment claimed discrimination.

The Law

The Advocate-General’s preliminary opinion is that it was indirect discrimination which constitutes a breach of the principle of equal treatment because:

1. the employer treated individual members of the same protected group differently on the basis of an apparently neutral criterion;
2. that criterion, although apparently neutral, is inextricably related to the protected characteristic (in this case, disability); and
3. that criterion cannot be objectively justified by a legitimate aim and the means of achieving that aim are not appropriate and necessary.

The employer’s actions were not positive towards disabled employees as they were motivated by financial gain.

At FTA Law we can advise on all areas of employment law, including disability discrimination and your duties towards a disabled employee or an employee with a protected characteristic. For more information contact us on 0330 088 2275.