In SULLIVAN v ISLE OF WIGHT COUNCIL (2025) EWCA Civ 379, Underhill LJ observed, at paragraph 115, that it is often the case in claims based on Article 14 of the Convention that issues of analogous position, status and objective justification overlap. Lewis LJ reiterated, from paragraph 26, that:-
- Article 14 can be considered only in conjunction with the enjoyment of one or more of the substantive rights or freedoms set out in the Convention; and
- In general terms, the approach to the question of whether differential treatment is contrary to Article 14 involves consideration of four broad issues:
- does the subject matter of the complaint fall within the ambit of one of the Convention rights?;
- has the person making the claim been treated less favourably than other people who are in an analogous, or relevantly similar, situation?;
- is that difference in treatment based on an identifiable characteristic amount to a status?; and
- is the difference in treatment objectively justifiable? That in turn involves consideration of whether the measure giving rise to the differential treatment pursues a legitimate aim and whether there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The burden is on those seeking to contend that measures are objectively justified to demonstrate that this is so.
As regards “status” Lewis LJ observed (emphasis added):-
“72. The European Court of Human Rights has recognised that Article 14 applies to differences based “on identifiable, objective or personal characteristics by which persons or groups of persons are distinguishable one from another … That includes, but is not limited to, characteristics which are innate or personal to an individual such as gender or race. It can also include other characteristics which differentiate between groups … a generous but not unlimited meaning ought to be given to “other status”, … the test of personal characteristics by which persons or groups were distinguishable from each other should be applied, … the personal characteristics need not be innate and the fact that a characteristic was a matter of personal choice did not rule it out as possible “other status” …
- I would regard being an applicant for a job as capable of constituting some other status for the purpose of Article 14 of the Convention. It is a characteristic capable of distinguishing one group of persons from other groups. It is an acquired characteristic, resulting from something that an individual chose to do, i.e. apply for a job. If a person was subjected to treatment on the ground that the person was a job applicant, I would regard that as capable of being treatment on the ground of some other status.”