Credit: IJRC
The European Court of Human Rights (ECtHR) held last week that Switzerland violated the European Convention on Human Rights by assessing disability benefits in a manner that disproportionately penalized women who reduced their working hours after having children, resulting in gender discrimination. See ECtHR, di Trizio v. Switzerland, no. 7186/09, Judgment of 2 February 2016 (in French only). The application was brought by Vita Maria di Trizio, an Italian national living in the Swiss canton of St. Gall, whose disability benefits were discontinued after she gave birth to twins under the application of a “combined method” of assessing benefits, which assumed that even without a disability she would not have been employed full-time in order to tend to her household and children. Swiss authorities had used this method almost exclusively with regard to women, to reduce or deny benefits by considering the impact of motherhood on their workforce participation.
The Court cited a growing awareness that the “combined method” impedes progress towards gender equality, and recognized increasing support for the development of a disability assessment method more favorable to persons who work part-time and that better protects women from disproportionate hardship with respect for both their paid work and domestic duties. [ECtHR Press Release]
Facts and Domestic Procedure
Ms. Di Trizio worked a full-time sales job until back problems forced her to resign in June 2002. She applied for assistance from the Disability Insurance Office in October of 2003 and was granted a 50 percent disability allowance beginning in June 2003. Ms. di Trizio gave birth to twins in February of 2004 and resumed work on a half-time basis in June of 2004, while also carrying out familial and household tasks. Swiss authorities discontinued her disability allowance as of August 2004 by applying the “combined method” to her case. This method presupposed that she would have chosen not to resume full-time work, even if she did not suffer from a disability, in order to take care of her children and home.
Ms. Di Trizio challenged the initial discontinuation of her disability allowance in a complaint to the Disability Insurance Office. Upon rejection of her initial complaint, Ms. di Trizio appealed her complaint to the local Insurance Court of the canton of St. Gall, which decided her disability had been assessed on an incomplete set of facts, and sent her complaint to be reassessed by the Disability Insurance Office. The agency then appealed this decision to a federal court.
The federal court reasoned that the aim of disability insurance is not to provide compensation for work individuals would not have done even without a disability, but is intended to protect individuals from the risk of being made unable, due to medical reasons, to engage in lucrative activities or perform routine household duties they would otherwise be able to. The federal court determined the “combined method” did not result in discrimination, and did not grant Ms. di Trizio further disability allowance.
On February 3, 2009 Ms. di Trizio filed a complaint with the European Court of Human Rights (ECtHR), citing violations of Article 8 (right to respect for private and family life) and Article 14 (right to freedom of discrimination) in conjunction with Article 6 (right to a fair hearing) of the European Convention on Human Rights. [ECtHR Press Release]
The European Court’s Judgment
Article 14 in Conjunction with Article 8
In analyzing the alleged violations of articles 14 and 8, the Court accepted the government’s argument that the aim of disability insurance is to protect individuals from the risk of losing their ability to work for an income or take on normal household tasks due to medical reasons. However, the Court stated that its evaluation of whether the “combined method” was reasonably justified had to consider gender equality. Moreover, the Court emphasized that such a disproportionate application of this method to women, and specifically mothers, could only be justified by very significant reasons.
The Court acknowledged that Ms. di Trizio had left full-time work prior to having her children due to problems with her back, and had been awarded a disability stipend up until the birth of her children. The Court stated that it was thus clear that her disability benefits had been discontinued not in consideration of the legitimacy of her disability but due to the assumption that she would have reduced her hours of work to tend to her children and household regardless of her disability.
The Court noted that of the cases where the combined method was applied, 98 percent concerned women. The Court also highlighted a July 1, 2015 report by the Swiss Federal Council which discussed that the “common method” fails to take into account the interactions between gainful activities and household duties and operates on the assumption that it is women who most often leave or suspend work to take care of children and the household, leaving the possibility for discrimination, at least of an indirect nature. See ECtHR, di Trizio v. Switzerland , no. 7186/09, Judgment of 2 February 2016 at para 40.
The Court was not convinced that there was reasonable justification for the difference in treatment of men and women in the calculation of disability benefits, and ruled, by a vote of four to three, that there had been a violation of Article 14 in conjunction with Article 8. It declined to analyze Ms. di Trizio’s claims with regard to Article 8 alone or Article 14 read together with Article 6. The Court held that Switzerland was to pay the applicant 5,000 euros in respect of non-pecuniary damage and 24,000 euros in respect of costs and expenses. [ECtHR Press Release]
Dissenting Opinion
Three of the judges expressed various concerns regarding the Court’s application of Article 8. They argued that because the complaint concerned monetary compensation, it did not fall within the scope of Article 8. See ECtHR, di Trizio v. Switzerland , no. 7186/09, Judgment of 2 February 2016 (joint dissenting opinion of judges Keller, Spano, and Kjolbro) at paras. 3-5.
The dissenting judges noted that most monetary complaints regarding discrimination are not based on Article 8, but rather on additional Article 1of Protocol 1 (right to peaceful enjoyment of possessions) to the European Convention. See id. at para 4. See also ECtHR, Moskal v. Pologne, no. 10373/05, Judgement of 15 September 2009; ECtHR, Stec and Others v. United Kingdom, nos. 65731/01 & 65900/01, Judgement of 12 April 2006. However, Switzerland has not ratified Protocol 1, and so is not bound by its provisions.
The dissenting judges also fear that such a flexible application of Article 8 would require that any grant or denial of social benefits falls under Article 8 since social benefits are always likely to have some impact on a household. They warn that this wide interpretation of Article 8 could threaten to allow any measure of labor law to fall under Article 8 as well. See ECtHR, di Trizio v. Switzerland , no. 7186/09, Judgment of 2 February 2016 (joint dissenting opinion of judges Keller, Spano, and Kjolbro) at para. 7.
Additional Information
To learn more about the European Court of Human Rights’ jurisprudence concerning persons with disabilities, see the relevant factsheet. For more information on the European Court of Human Rights and the European human rights system, visit IJRC’s Online Resource Hub.