A common feature does not exclude discrimination


An article by Michał Tomczak in the Rzeczpospolita daily (Kadry i Płace).

It is about a rather strange judgement, which concerns a Polish employer. Sometimes the courts – not only the big ones, but also the smaller ones – have to assume the burden of explaining a regulation that is apparently obvious in its message and purpose. The practice of interpretation in individual countries and certainly in Poland, with great difficulty allows for a purposeful and functional interpretation on the provision. Such an interpretation always requires first a statement – according to generally known rules in this respect – that the meaning of the legal text is not clear.

Hospital cunning

Sometimes the mere understanding of the actual state of affairs is irrelevant to understanding the meaning of the judgement, but it can be interesting in itself. Why the Hospital of the name Józef Babiński – one of the most famous psychiatric hospitals in Poland, diversified the situation of people with the formally identical status of disabled person which was prima facie action not so much discriminatory as pointless?

The hospital encouraged employees with diagnosed disabilities to obtain and submit certificates confirming the disability. The thing is that a dozen or so disabled people have already worked in the hospital, who did not submit such certificates and thus did not receive a salary supplement. Thus, there was a kind of discrimination within the group of disabled people in such a way that some of them were treated differently than others.

According to Polish regulations, at 6 percents persons with disabilities among employees, the workplace is exempt from fees for the State Fund for the Rehabilitation of Disabled Persons. In order to collect this group, the hospital offered new applicants an allowance of PLN 250. It would be less profitable to pay the allowance to everyone, including the “old” disabled. The “price” of the exemption from PFRON fees would then be higher. This is how I understand it in general, although the reasoning of the judgment does not fully explain this issue. the reasoning of the judgement does not fully explain this issue.

Preliminary question

This is what the judgement of the Court of Justice of the European Union of January 26, 2021 in case C-16/19 is about. This rather unusual case coming from a Polish hospital made it possible first refer a question for preliminary ruling by a Polish court, and then to issue a ruling on the basis of the one of the key provisions of the Equality Directive 2000/78, Art. 2.

I would say that if the Polish courts were allowed a little more freedom on the basis of their wisdom and common sense, the question would not arise for a preliminary ruling. But, in the end it’s good that it was made.

From the hard-case point of view, the problem is whether such differentiation can be treated as disability discrimination. For we would say, prima facie, that the provision which prohibits discrimination on the basis of disability concerns rather the differentiation of workers with disabilities from workers without disabilities, which is unjustified as a goal worthy of protection.

Rather perverse reasoning

The diversity of employees within the same group was evident here. It was not justified by reasonable, rational reasons, because it was dictated only by the specific financial interest of the hospital. The problem resolved by the Tribunal in this case was not so much related to the assessment of the actual state of affairs as to the way in which the law was applied.

I do not want to bully here, in a sense also myself, because I am a lawyer convinced of the humanistic and equitable sense of the law. However, the breadth of the justification devoted to the issue of why are dealing with discrimination within the meaning of Council Directive 2000/78/ EC of 27 November 2000 can be referred to as the torment of law. All of judges as well as we are aware that the idea of discrimination comes from comparing the situation of people who are affected by a certain feature with those who are not. Probably the differentiation of people within the group having the same trait constitutes an unjustified differentiation of these employees. However, it should not necessarily be subject to anti-discriminatory legislation, which is known to have an EU- wide source and EU – wide weight. Which also boils down to the fact that such a case could not necessarily be dealt with by the Tribunal.

In other words, the hospital must have acted disgracefully or even indecently,but not necessarily discriminatory. The provision of art. 2 clause 2 lit a of the Directive states that direct discrimination occurs when a person I treated less favorably than another person is treated, was treated or would be treated in a comparable situation for any reason listed in Art. 1 (including disability). The term “other person”, it seems, should be understood as meaning persons who do not have discriminatory feature.

The Court took a different position and in a way, broadened the EU notion of discrimination. From the point of equity – fine. Logically, I am not sure. But rightness is more important. Because without such judgements, the Directive would have to be changed and made more precise, and this is always a great undertaking.

The content of the judgement

The Tribunal ruled that the employer’s practice of paying a salary supplement to disabled employees who submitted a certificate confirming their disability, after the date chosen by that employer and not taking into account disabled employees who submitted such a judgement before that date, may constitute direct discrimination if it turns out that this practice is based on a criterion inextricably linked to disability. It is capable of definitively preventing the fulfillment of that time condition for a clearly defined group of workers consisting of all disabled workers whose disabilities the employer must have known about when the practice was introduced.

In other words, when any differentiation of employees is related to a “discriminatory” feature, this differentiation is in principle unacceptable. The reference need not be made to other persons who are not discriminatory.

There was also a second thread in the described case, which is not entirely clear as to the fact so I am basically omitting it. The point is that the group of “old” disabled people in the hospital had almost without exception a further and usually visible disability. The Tribunal found that this situation may constitute indirect discrimination which, as we know, consists in the fact that the discriminatory effect is exerted by an apparently neutral practice. In this case, the point was that people with severe and more visible disabilities were treated worse than those with less disabilities. And all because of the deadline for submitting disability certificates, which is a somewhat insane practice in a psychiatric hospital, which was the starting point for the Tribunal’s ruling.


About Author

I am a lawyer with thirty years of experience, in my first professional life I was a journalist. But in my every life I am most attracted to curiosity, discovering new lands, and secondly - convincing people to do what is wise, good or beautiful. I will also let myself be convinced of these three things.

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