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“Indirect discrimination protection under the EU Race Directive applies to anyone who ‘suffers alongside’ those of a certain ethnic origin”

Indirect discrimination

A European Court of Justice case has opened the door for easier indirect discrimination claims to be brought by individuals without protected characteristics

Owing to a case about the positioning of electricity meters in Bulgaria, it is now easier for individuals who are not part of a disadvantaged protected group to bring indirect discrimination claims.

The UK Equality Act does not permit individuals to bring indirect discrimination claims because of their association with a disadvantaged protected group; rather, the individual must share the protected characteristic of the group itself (e.g. race, disability, etc.). However, the Court of Justice of the European Union in the case of CHEZ Razpredelenie Bulgaria has held that EU law permits individuals who are not part of a protected group, but who share the disadvantage of the protected group, to bring discrimination claims.

Courts in the UK are obliged to interpret statutory provisions in line with European law; therefore expect challenges to the Equality Act 2010. This might happen where, for example, a man with caring responsibilities challenges an employer’s flexible working policy. Generally, the tribunals have regarded women as being more detrimentally impacted by onerous flexible working policies (due to their greater level of child caring responsibilities); as men are not part of that protected group, it has been difficult for them to bring challenges to employers’ flexible working practices. However, this case appears to give the opportunity to challenge this approach.

More about the case…

The Claimant ran a shop in Bulgaria in a district which was mainly populated by people of Roma origin.  The Claimant was not of Roma origin.  The Respondent supplied electricity to the district and had a policy of fixing electricity meters on poles around 6 metres off the ground.  In other areas the meters were fixed at a much lower level (under 2 metres).  The Respondent’s rationale for the policy was that there had been tampering with meters in the district and unlawful connections to the electricity network.

The Claimant complained that the height of the meter prevented her from reading it and checking how much electricity she was using.  She considered that her electricity bills were excessive and suspected that she was being overcharged to allow the Respondent to recoup the alleged losses that they were suffering in that district.  She brought an indirect discrimination claim alleging that she had been discriminated on the grounds of her nationality.

The claim was upheld at first instance, albeit on the grounds of ethnicity rather than nationality on the basis that the Claimant identified herself with the Roma community in the district.  The Respondent appealed and the appeal court referred various questions to the ECJ.   The key question was whether a person presenting a complaint of indirect discrimination must possess the protected characteristic in question.

The ECJ held that indirect discrimination protection under the EU Race Directive applies to anyone who “suffers alongside” those of a certain ethnic origin, where the relevant treatment stems from a measure based on ethnic origin.  In reaching this decision the ECJ concluded that the wording of the discrimination provisions in the Directive was not decisive and it was necessary to look at other sources to assist interpretation.

The aim of the Race Directive was to eliminate all discrimination on ethnic or race grounds and, as such, was an expression of the fundamental EU law principle of non-discrimination.  In light of this aim, the Directive’s wording should not be interpreted restrictively and should be construed as being designed to benefit all persons suffering less favourable treatment or particular disadvantage on one of the specified grounds.  Here, the Claimant was not of Roma origin, but was associated with people of Roma origin.  The PCP in question disadvantaged those of Roma origin and the Claimant was, in turn, disadvantaged  by her association with them.

Although discriminatory, the treatment could potentially be justified.  The ECJ said it was for the Bulgarian Courts to decide whether the practice could be objectively justified.  In doing so, they would need to consider whether: (i) the measure went beyond what was appropriate and necessary to achieve the legitimate aim; and (ii) the disadvantage/s caused were disproportionate to the objective/s pursued.