17 January 2015

By Aileen McColgan, Matrix Chambers and King’s College London

Article 14 provides that “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. As its terms suggest, it does not amount to a free-standing prohibition on discrimination but regulates discrimination which falls within the scope of ambit of other Convention rights. It is clear that “other status” extends to age, disability and sexual orientation (Lustig-Prean & Beckett v UK (1999) 29 EHRR 548) as well as marital status (Sahin v Germany (2003) 36 EHRR 43), residence (Carson & Ors v UK (2010) 51 EHRR 369) and professional or military status (Van der Mussele v Belgium (1983) 6 EHRR 163, Engel v Netherlands (1976) 1 EHRR 647 respectively).

In the early days, Article 14 provided relatively little assistance in the field of employment. An attempt in Van der Mussele v Belgium to rely on the provision to challenge a Belgian requirement that trainee barristers perform a certain element of pro bono work failed. The Court ruled that pupil barristers were not analogously situated with other professionals for the purposes of a discrimination claim, but the case could equally be read as exhibiting a lack of enthusiasm on the part of the court to become embroiled in work-related challenges.

In Lustig-Prean & Beckett (one of the “Gays in the military” cases), the Court accepted that the expulsion of service personnel because they were gay breached Article 14 read with Article 8 of the Convention. The recent decision of the Court in Affaire IB v Grèce, which Michael Ford QC discusses in his paper of Article 8, reconfirms the application of Article 14 (there again with Article 8) to dismissal.

The application of Convention rights to dismissal decisions pre-dated their application to other employment-related decisions, dismissal being regarded as an interference of greater magnitude than other interferences with the Convention rights (see Vogt v Germany (1995) 21 EHRR 205). For this reason the decision of the ECtHR in Thlimmenos v Greece (2000) 31 EHRR 411 is of particular significance. There the Court ruled that a Greek prohibition on the admission of those with criminal convictions into the accountancy profession breached Articles 9 and 14. Mr Thlimmeons’ conviction resulted from his religious objection to compulsory military service (he was a Jehovah’s Witness). No Convention provision regulated access to the professions as such, but the Court accepted that the state’s refusal to distinguish between a conviction which flowed from a religious belief and one which indicated “dishonesty or moral turpitude” amounted to discrimination contrary to Article 14 and Article 9 (which protects freedom of religion). Some years later, in Sidabras and Dziautas v Lithuania (2004) 42 EHRR 104, the Court ruled that a law prohibiting former KGB agents from holding certain jobs in the private sector breached Article 14 read with Article 8.

Early approaches to the meaning of “discrimination” for the purposes of Article 14 were narrow, the application of the provision being restricted in fact, though not in theory, to direct discrimination (that is, less favourable treatment because of one of the protected characteristics). The ECtHR confirmed from the start that discrimination could arise by reason of the result rather than the purpose of the disputed treatment (Belgian Linguistic Case (No 2) (1968) 1 EHRR 252, Abdulaziz v UK (1985) 7 EHRR 471, Jordan v UK (2001) 37 EHRR 52) but not until 2007, with the decision in DH v Czech Republic (2007) 44 EHRR 3, did an applicant unambiguously succeed in an indirect discrimination claim under Article 14.

The decision in Thlimmeons was significant not only because of the fact that the discrimination at issue concerned access to a profession rather than expulsion from a job, but also because of the novel approach to the meaning of “discrimination” there adopted:

“The court has so far considered that the right under art 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when states treat differently persons in analogous situations without providing an objective and reasonable justification … However, the court considers that this is not the only facet of the prohibition of discrimination in art 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when states without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.”

The decision in Thlimmeons was significant not only because of the fact that the discrimination at issue concerned access to a profession rather than expulsion from a job, but also because of the novel approach to the meaning of “discrimination” there adopted. On the one hand this formulation is no more than a restatement of Artistotle’s classic statement: “treat like cases alike; unlike cases differently”. In practice, however, it opens the door to an approach to discrimination which is markedly more radical than that previously adopted by the ECtHR.

The decision in Van der Mussele was mentioned above. It is one of many cases in which the Court adopted a formalistic approach to Article 14 by requiring, as an element of a successful claim, that the Applicant establish not only that the reason for the treatment of which s/he complained was a ground protected by Article 14, but also that s/he had been treated less favourably than someone in an analogous position. While the requirement for “less favourable” treatment is, on the one hand, a familiar element of any discrimination claim, it is also one which is capable of derailing claims (as in Carson, for example, in which a claim by UK pensioners resident outside the UK that they should be treated the same as those within the UK as regards uprates to their state pensions was defeated on the basis that they were not in the same position as those resident in the UK. The ECtHR did not consider the justification for the differential treatment between the applicants and their comparators, simply dismissing the claim on the basis that the two groups were not analogously situated).

The seeds carried by Thlimmenos of a less formalistic approach to discrimination were reaped in DH v Czech Republic with the recognition by the Court in practice, rather than merely in theory, of indirect discrimination. More recently, in Opuz v Turkey (2010) 50 EHRR 2, the Court ruled, in a claim arising from domestic violence abuse and murder, that Article 14 fell to be interpreted in light of the specialist jurisprudence of the Convention on the Elimination of all Forms of Discrimination against Women, which jurisprudence recognised violence against women, including domestic violence as a form of discrimination against women. (In doing so, the Court relied on its earlier decision in Demir v Turkey (2009) 48 EHRR 54 in which it changed its approach to Article 11 of the Convention on the basis, inter alia, of the specialist ILO jurisprudence.) This being the case, and without any consideration of questions such as whether the Turkish state provided less protection to women victims of violence than to men, the Court ruled that the continued subjection of the applicants to domestic violence in the private sphere breached Article 14 read with Articles 2 and 3.

Opuz was not a work-related case. It does, however, indicate the potential for continued development of the Article 14 jurisprudence in this area in light not only of CEDAW but also of the ILO conventions and other international provisions relating to discrimination and equality including, of particular relevance here, the Convention on the Rights of Persons with Disabilities (“the Disability Convention”). In Burnip v Birmingham City Council & Anor [2012] LGR 954 Maurice Kay VP, with whom Hooper LJ agreed, suggested that “It would be quite wrong to resort to [domestic caselaw] so as to produce a restrictive approach to Article 14. Indeed, one of the attractions of Article 14 is that its relatively non-technical drafting avoids some of the legalism that has affected domestic discrimination law”. The Court went on to accept that a failure to make allowances for the fact that the claimants, who were in receipt of housing benefit, needed larger properties by reason of their or their children’s disabilities and were therefore placed at a particular disadvantage by payment caps premised on smaller properties, breached Article 14. Perhaps of most significance was the reference made by Maurice Kay VP to the decisions of the ECtHR in Demir and in Opuz. Having remarked that the decisions did not appear to have been drawn to the attention of the judge below against whose decision the appeal was brought, his Lordship declared that “If the correct legal analysis of the meaning of art 14 discrimination in the circumstances of these appeals had been elusive or uncertain (and I have held that it is not), I would have resorted to the [Disability Convention]”, which “would have resolved the uncertainty in favour of the Appellants”.

The potential of Article 14 in the employment field is probably only just beginning to be realised with the blossoming of that provision in the recent jurisprudence of the European and domestic courts. In particular inasmuch as Article 14 incorporates the more specialised jurisprudence developed under CEDAW, the Disability Convention and (by analogy) the Convention on the elimination of all forms of Race Discrimination (CERD) it provides a route into domestic law for those international standards which would not otherwise exist.