Kela, the Social Insurance Institution of Finland, discriminated against a person with impaired hearing by denying a reasonable accommodation in Kela's interpreting services
A person with impaired hearing entitled to an interpreting service applied to Kela, the Social Insurance Institution of Finland, for a change in the contents of the interpreting service as a reasonable accommodation in accordance with the Non-Discrimination Act. The need for the accommodation was related to peer support meetings, in which the person with impaired hearing would have needed written interpretation from spoken Finnish to written English. Kela denied the accommodation. The Non-Discrimination Ombudsman brought the matter to the National Non-Discrimination and Equality Tribunal, which found that Kela had discriminated against the person with impaired hearing. Kela appealed the decision of the National Non-Discrimination and Equality Tribunal to the Helsinki Administrative Court. The Administrative Court rejected the appeal and found, like the National Non-Discrimination and Equality Tribunal, that Kela had discriminated against the person with impaired hearing. The decision of the Administrative Court is final.
The case involved a person with impaired hearing entitled to Kela's interpretation services, whose native language is English. The interpretation service in question covers interpretation from spoken English to written English and correspondingly from spoken Finnish to written Finnish as well as plain Finnish. The person had lived and worked in Finland for decades, but due to the hearing impairment, had not learned enough Finnish to benefit from spoken Finnish being interpreted into written Finnish. As a result, the person needed an accommodation in the interpretation service so that it would be carried out from spoken Finnish to written English. The request and need for accommodation was primarily related to peer support meetings, in which the communication was in Finnish.
The Non-Discrimination Act obliges service providers, authorities, education providers and employers to make reasonable accommodations in order to ensure that people with disabilities can deal with the authorities, receive education, use services as well as carry out their job duties and progress in their career. Denial of reasonable accommodation constitutes discrimination.
As grounds for the refusal, Kela stated that the need for an accommodation in the interpretation was not due to the person's hearing impairment, but the person's insufficient language skills. In 2018, the Non-Discrimination Ombudsman brought the matter to the National Non-Discrimination and Equality Tribunal, which issued its decision in 2020 and prohibited Kela from continuing to discriminate against the client under the threat of a fine of EUR 5,000. Kela appealed the decision of the Tribunal to the Helsinki Administrative Court. The Administrative Court rejected the appeal and found that the need for a reasonable accommodation was due to the difficulty in learning a language caused by the hearing impairment, not insufficient language skills, as Kela had stated in its grounds.
The interpretation of the Act on Interpretation Services for Persons with Disabilities must take demands for reasonable accommodations into account
During the processing of the case, Kela presented the interpretation that the Act on Interpretation Services for Persons with Disabilities would not authorise Kela to arrange an interpretation service from one spoken language to another spoken language written. In addition, Kela justified its position by stating that it was not possible to ensure the quality of the interpretation requested, and that making the accommodation would not have been fair with regard to the other clients of the interpretation service. Concerning this, the Administrative Court stated that section 4 of the Act on Interpretation Services for Persons with Disabilities cannot be interpreted without taking account of the requirements of the Non-Discrimination Act and the UN Convention on the Rights of Persons with Disabilities (CRPD) concerning reasonable accommodations.
The case involved a reasonable accommodation made on a case-by-case basis with the aim of meeting the individual needs of a person with disabilities. In the grounds for its decision, the Administrative Court stated the following: "Therefore, an accommodation in a single, concrete situation does not mean a general policy in granting reasonable accommodations. In the case under discussion, the accommodation related to interpretation requested by the injured party was necessary and required in the individual case as well as appropriate for safeguarding the rights of the injured party." The Administrative Court also found that Kela had failed to prove that arranging for a written interpreter as requested by the injured party would have been impossible for Kela in reality or that it would have caused Kela an unreasonable burden.
The full decision of the Helsinki Administrative Court is available in Finnish: Helsinki Administrative Court, 3 February 2023 607/2023 - Decisions of the Administrative Court - FINLEX ®