Article 14 of the Human Rights Act 1998 prohibits discrimination in the enjoyment of Convention rights. It states that the rights in the European Convention on Human Rights must 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.
What does Article 14 say?
The full text of Article 14 states:
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.
In essence, Article 14 provides that all of the rights set out in the Convention must be secured without discrimination. It protects against discrimination in relation to any of the other Convention rights.
What rights does Article 14 apply to?
Article 14 does not provide a free-standing right to be free from discrimination. It only comes into play in relation to other Convention rights. For example, it could apply in relation to:
- Right to life (Article 2)
- Prohibition of torture (Article 3)
- Right to a fair trial (Article 6)
- Right to respect for private and family life (Article 8)
- Freedom of thought, conscience and religion (Article 9)
- Freedom of expression (Article 10)
- Freedom of assembly and association (Article 11)
- Right to marry (Article 12)
- Right to an effective remedy (Article 13)
- Right to education (Article 2, Protocol 1)
- Right to free elections (Article 3, Protocol 1)
So Article 14 can only be used if another Convention right is also engaged. There must be discrimination in the enjoyment of one of the other substantive Convention rights for Article 14 to come into play.
What does discrimination mean?
Discrimination under Article 14 means treating someone less favourably than another person in a comparable situation on one of the protected grounds. The relevant comparator must be in an analogous situation. There must be no objective and reasonable justification for the difference in treatment.
Direct and indirect discrimination are prohibited. Direct discrimination occurs when a person is treated less favourably because of a protected characteristic such as sex or race. Indirect discrimination occurs when a policy or measure applies to everyone but disadvantages a particular group.
When can differences in treatment be justified?
Not all differences in treatment will amount to impermissible discrimination under Article 14. Differences based on one of the protected characteristics are allowed if they:
- Pursue a legitimate aim
- Bear a reasonable relationship of proportionality between the means employed and the aim sought to be realised
Objective and reasonable justifications can therefore render differential treatment compatible with Article 14. However, weighty reasons are required to justify discrimination on grounds such as sex, race and ethnicity.
What grounds are covered by Article 14?
Article 14 contains a non-exhaustive list of protected grounds on which discrimination is prohibited. These include:
- Sex
- Race
- Colour
- Language
- Religion
- Political or other opinion
- National or social origin
- Association with a national minority
- Property
- Birth
The words “such as” make clear this list is not closed. Other grounds are also covered by Article 14 even if not explicitly mentioned, such as discrimination based on disability, age, sexual orientation or gender reassignment.
How is Article 14 enforced in the UK?
As Article 14 relates to other Convention rights, it is enforced in the UK through the Human Rights Act 1998. This incorporated the rights in the European Convention into domestic British law.
If a person’s Convention rights have been breached in a discriminatory manner, they can bring a claim under the Human Rights Act in UK courts. The courts have a duty to interpret legislation compatibly with Convention rights where possible.
A successful claim could result in a declaration of incompatibility if it is not possible to interpret the legislation compatibly with the Convention right. The claimant may also be entitled to damages. Ultimately, the government and Parliament are responsible for remedying any incompatibility.
What is the relationship between Article 14 and the Equality Act 2010?
The Equality Act 2010 is the main anti-discrimination legislation in Great Britain. It protects against discrimination in employment, education, housing, and the provision of services and public functions. The protected grounds largely mirror those in Article 14 of the Convention.
While the Equality Act provides strong protection in British law, Article 14 may offer additional safeguards in some circumstances. It can plug gaps where domestic anti-discrimination law may not apply.
However, before relying directly on Article 14, potential claimants are generally expected to first exhaust domestic remedies available under the Equality Act.
Key cases on Article 14
There have been many important cases which have helped define the scope of Article 14 and the principle of non-discrimination:
Thlimmenos v Greece (2000)
This landmark European Court of Human Rights case established that failing to treat differently persons whose situations are significantly different can amount to discrimination under Article 14.
Carson v UK (2010)
The Court held that discrimination on grounds of illegitimacy breached Article 14. Requiring higher levels of financial dependence for entitlement to bereavement benefits for cohabitees compared with widows was unjustified.
Gaygusuz v Austria (1996)
Unemployment benefit rules which excluded periods of short-term employment breached Article 14 discriminating against seasonal and casual workers who were often non-nationals.
D.H. v Czech Republic (2007)
Indirect discrimination against Roma pupils in special schools breached Article 14 notwithstanding apparently neutral policies. Statistical evidence helped establish discriminatory effect.
| Case | Key Points |
|---|---|
| Thlimmenos v Greece (2000) | Failing to treat differently persons in significantly different situations can breach Article 14 |
| Carson v UK (2010) | Rules imposing additional burdens on cohabitees’ entitlement to bereavement benefits amounted to unjustified discrimination |
| Gaygusuz v Austria (1996) | Exclusion of short term workers from unemployment benefit was indirectly discriminatory against foreign nationals |
| D.H. v Czech Republic (2007) | Statistical evidence established apparently neutral policies had discriminatory effect against Roma pupils |
When can companies discriminate?
Private companies are not directly bound by the Human Rights Act 1998 or Article 14 which applies to public authorities.
However, if a private company carries out a public function, it may have to comply with human rights standards including non-discrimination. The Equality Act 2010 also prohibits discrimination by private companies in many areas.
Justifications are available where discrimination is a proportionate means of achieving a legitimate aim such as providing special facilities, single-sex services or employment requirements.
Examples
- A nightclub offering discounted admission to women to create a balanced clientele was justified discrimination.
- Requirement of biological sex rather than assumed gender was held to be legitimate for separate-sex counselling services.
- Charity supporting black students by providing scholarships could use racial criteria compatibly with Article 14.
However, policies based solely on stereotypes rather than evidence of need are unlikely to be justified.
Positive action
Positive action describes measures targeted at particular groups to redress past discrimination or disadvantage. This is permitted in order to accelerate progress towards equality.
For example, the Equality Act allows employers to take positive action in recruitment and promotion. Targeted training schemes for disadvantaged groups are another example of lawful positive action.
However, quotas or automatic preferences based on protected grounds are not permitted. Candidates should still be assessed according to merit with no automatic right to be chosen.
Intersectional discrimination
Discrimination often occurs due to a combination of protected grounds rather than just one characteristic in isolation. This is known as intersectional or multiple discrimination.
For example, a black woman may suffer discrimination both on grounds of race and sex. Other intersections could include age and disability, or sexual orientation and religion.
The European Court has recognised that such cumulative discrimination may require explicit recognition rather than simply looking at discrimination strands separately.
Burden of proof
In discrimination cases, the burden of proof may shift to the respondent once the applicant establishes facts suggesting possible discrimination. The respondent must then show there was no breach of Article 14.
This reverse burden of proof enables courts to consider all the evidence and put the facts before them. Otherwise it would be extremely difficult for applicants to prove motives for discriminatory treatment.
Conclusion
Article 14 of the Human Rights Act provides important protection against discrimination in the UK. It complements long-standing domestic anti-discrimination laws.
The broad range of protected grounds under Article 14 adapt to changing societal attitudes. The European Court’s progressive approach helps ensure individuals are not denied Convention rights due to arbitrary distinctions.
While justifications are permitted for differential treatment in some circumstances, the scope for lawful discrimination shrinks over time. The overriding trend is towards greater inclusivity and tolerance of diversity.