The European Court of Justice (“ECJ”) last month held that an individual may successfully claim indirect discrimination, even where that individual does not have the protected characteristic being relied upon and is not part of the particular disadvantaged group. While not an employment law case, the implications of this ruling will impact the employment and HR sphere.
The previous position
The concept of associative discrimination is not new. In Coleman v Attridge Law, the carer of a disabled child suffered discrimination by her employer when she sought to take additional time off work to care for her son, following a request to work from home. While not herself disabled, the ECJ held that if the employer’s detrimental treatment towards the claimant was because of the fact her son was disabled, she should be protected under anti-discrimination legislation. The effect of this decision was to provide protection against direct discrimination by association.
Likewise, in English v Sanderson Blinds Ltd, the claimant was subjected to repeated barrages of homophobic abuse, despite being heterosexual and the fact his employer and colleagues were aware of his heterosexuality. Initially, the EAT held that the claimant’s workplace harassment could not have been due to sexual orientation. On appeal to the Court of Appeal, a majority overturned the EAT’s decision and held the claimant’s heterosexuality was irrelevant to his claim. The distress caused to the claimant was the same as if he was homosexual and was therefore because of a protected characteristic, even although this was only a perceived sexual orientation.
The cumulative effect of both these decisions was to expand anti-discrimination legislation, recognising the concepts of discrimination by association and discrimination by perception. However, such claim could only be brought by claimants on the basis of direct discrimination, or harassment. Indirect discrimination on the basis of association and/ or perception was thought to fall outside of the new, increased protections recognised by the ECJ. Indirect discrimination occurs where a particular provision, criterion or practice, which on the face of it is neutral and is not necessarily designed to discriminate against a protected characteristic, does so in its practical effect by having a disproportionate impact on a particular group. An example of this would be a blanket workplace policy against beards: this indirectly discriminates against those of Sikh faith who are prohibited from cutting their hair as part of their religious beliefs.
Previously, there was no concept of “indirect discrimination by association”. Section 19 of the Equality Act 2010 currently still reflects that position by requiring that a claimant share the same characteristics as the relevant disadvantaged group of indirect discrimination to apply. Following the ECJ’s decision in CHEZ Razpredelenie Bulgaria AD v Komisia za Zashita ot Diskriminatsia Case C‑83/14 this may now be a recognised right of claim.
Background
CEZ Electricity was a privatised Bulgarian electricity supplier which serviced much of that country. This included supplying energy to areas with proportionally high number of Roma inhabitants. Across most of Bulgaria, the company installed electricity usage meters approximately one metre and a half above ground level. The objective of having meters at this height was to allow customers to monitor their electricity use more effectively. A different policy, however, was applied in those predominantly Roma areas which required meters be placed six metres above ground level.
The company defended this policy citing a high number of instances of meter tampering in Roma areas. Meters were consciously installed in hard to reach locations to minimise this risk. It was expressly stated by CEZ in their terms and conditions that they may install meters in hard to reach places as a defensive measure in this regard.
Ms. Nikolova, while not Roma herself, was a shop-keeper in one of the districts (Dupnitsa) affected by this defensive measure and lodged a complaint with the Bulgarian Commission for Protection from Discrimination. A significant part of Ms. Nikolova’s claim was that she could not as easily and freely monitor her electricity consumption as those in other parts of the country. Ms. Nikolova had not been the target of this company policy but was affected by its application in her area of business.
Ms. Nikolova’s claim was upheld by the Bulgarian anti-discrimination watchdog on the grounds she had been discriminated against in respect of ethnicity – despite not being part of the ethnic group in question.
Sofia Supreme Administrative Court
CEZ Electricity appealed to the Supreme Administrative Court which, in turn, sought guidance from the ECJ on the interpretation it should take relative to the Charter of Fundamental Rights of the European Union and Racial Equality Directive in this matter.
Opinion of Advocate General Kokott
Prior to the matter being addressed by the ECJ as a sitting court, an opinion on the matter was delivered by an Advocate General of the ECJ. The issue which the AG had to contend with was that, while negatively affected by the policy, Ms. Nikolova was not Roma as a matter of biology. This posed difficulties in successfully arguing that she had been discriminated against through the policy. CEZ Electricity’s policy was certainly directly discriminatory against Roma, but as Ms. Nikolova did not form part of that ethnicity, she could not be said to have been directly discriminated against.
To bypass this obstacle, AG Kokott held that it was necessary to develop a concept of “associative discrimination” with respect to indirect discrimination. By virtue of Ms. Nikolova’s association with a predominantly Roma district, she was subject to the same ramifications of the policy as a Roma citizen would have been. Her non-Roma heritage did not negate this detriment.
European Court of Justice
Despite avoiding some of the more radical elements of the Advocate General’s Opinion, the ECJ agreed with her overall conclusion. It was irrelevant that Ms. Nikolova was not of Roma heritage – she suffered an unjustified detriment through CEZ Electricity’s policy. As a form of direct discrimination, the policy could not be justified. A blanket ban on low level meters in Roma areas could not be justified and was disproportionate in application. A policy against low level meters was itself lawful, but only in districts where it could be justified and where certain racial factors, such as the predominant local ethnic groups, did not feature in the decision-making process.
Conclusion
On a practical level, the ECJ’s decision has:
- increased the focus in indirect discrimination claims on the detriment and disadvantage a claimant is put to; and
- reduced focus on the reasons which make such behaviour discriminatory in the first place.
This opens the door to a worryingly large number of scenarios where an employee – aggrieved about a workplace decision – could challenge that decision under the guise of “discrimination” despite it not having a discriminatory impact on the complainant (or indeed anybody in real life application).
While attempts to minimise discrimination should in principle be lauded, the importance of these often hard fought protections are lessened when the courts, at all levels, attempt to excessively broaden their application. Anti-discrimination laws are dynamic and improved as time and circumstances progress. Nonetheless, wholesale attempts to include more and more individuals within the scope of anti-discrimination legislation only serve to weaken those protections for those who need them most.
Contact our Employment Lawyers in Glasgow
If you require legal advice regarding any employment issue or discrimination case our team of employment lawyers can help. Whether you believe that your business needs to proactively address potential discrimination issues or if an employee has raised a complaint, we can offer you the best advice and representation tailored to your needs. To discuss any problems you may have, contact our team today using our online contact form or call us on 0141 530 9164.
This article is for general information only. Nothing in this article should be taken as legal advice.
