European jurisprudence dealing with rights of people with special needs

A fortnight ago we dealt with definitions and conceptual aspects relating to disability, introducing a new rights-based perspective. Today we will see how the rights of people with special needs are intricately linked to the concept of equality and non-discrimination.

Advocate General Elmar opined that these basic principles inured to the benefit of people with disabilities (Case C-249-96, Jacqueline Lisa Grant v South West Trains Limited, 1998, ECR, I-621).

The European Court of Justice (ECJ) has already dealt with related cases in its consideration, interpretation and application of the general principle of equal treatment, a fundamental principle of Community law, which has evolved to include also into important social policy issues, such as gender equality and anti-discrimination laws.

Whereas the principle of equal pay has been long established and stipulated under EC law (Article 141), only the Treaty of Amsterdam referred to the equal treatment of men and women. The objective of Directive 76/207 is to secure equal treatment between men and women in three broad, employment-related areas: access to employment and promotion, vocational training, and working conditions.

The equal-treatment principle means "any discrimination on grounds of sex either directly or indirectly by reference in particular to marital or family status".

The ECJ however has adopted a teleological (judicial law-making) approach in this important field. The ECJ has held that its protection extends to retaliatory measures adopted by an employer after the end of the employment relationship (Case C-185/97, Coote v Granada Hospitality Limited 1998 ECR I-5199).

It also held that to extend the discriminatory effects of an old benefit to the criteria for eligibility for a new benefit went contrary to EC legislation. These cases concerned an application for a severe disability allowance, which had been brought in to replace the earlier invalidity allowance.

The invalidity allowance had discriminated against married women by requiring them not only to be incapable of continuing to work, but also incapable of performing normal household duties, and the new severe-disablement allowance effectively continued the discriminatory criteria for eligibility.

This, the ECJ held, was not permissible under EU law (see Case 384/85, Borrie Clark v Chief Adjudication Officer 1987 ECR 2,865 & Case 80/87, Dik v College van Burgemeester en Wethouders 1988 ECR 1,601).

The scope of the EC Directive was given a broad reading by the ECJ in the Case 150/85 Drake v Chief Adjudication Officer 1986 ECR 1,995, in which a woman who had given up work to care for her disabled mother was refused an invalid care allowance under national legislation on the ground that such an allowance was not payable to a married woman who was living with her husband.

The ECJ concluded that a benefit which forms part of a statutory invalidity scheme is paid to a third party and not directly to the disabled person does not place it outside the scope of Directive 79/7.

In Case C-31/90 Johnson v Chief Adjudication Officer 1991 ECR I-3,723, Johnson had given up work for some years to care for her child, and in the meantime had developed a serious back condition which rendered her unable to work.

She was refused an invalidity pension or severe-disability allowance because she was cohabiting with her partner, and since this restriction did not apply to men and thus was discriminatory, Johnson argued that it breached Directive 79/7.

Despite the Commission's argument that, since those who give up work to look after children are largely women, who would be at a considerable disadvantage if they were excluded from the Social Security Directive on account of an illness or disability subsequently arising, the ECJ ruled that they would not be within the personal scope of the Directive, and shifted the responsibility for removing the disadvantage faced by women on to the Community legislature.

Other related cases are Case C-297/93 Grau-Hupka v Stadtgemeinde Bremen 1994 ECR I-5,535; Case 77/95 Zuchner v Handelskrankenkasse Bremen 1996 ECR I-5,689; and Case C-243/90, R v Secretary of State for Social Security ex parte Smithson 1992 ECR I-467.

Though the EU itself is developing norms dealing with rights of people with special needs to hinder the effects of the omission from the founding treaty, reality dictates that discretion and responsibility rests with the member states.

Most, nearly all (including ours), member states' constitutions are silent on disability. Only the German Constitution (Section 3 [3], clause 2) provides that "nobody may be disadvantaged on the grounds of disability".

It is arguable whether it should be the member state itself who should take the initiative and protect such rights or whether the EU should do it. The EU has been criticised for not including a strong anti-discrimination provision that explicitly included disability and that reached indirect discrimination to avoid what really happened - many legislative and policy proposals (such as those on market harmonisation) were allowed though they adversely affected people with disabilities and all this further compounded their exclusion.

However, with the emergence of the EU Charter and possible accession to the European Convention on Human Rights, there is a likelihood that those suffering with some form of disability will no longer be invisible to European eyes.