The ECJ has held that a claim for indirect discrimination under the Race Directive could be brought by an individual who did not have the relevant protected characteristic where it could be said that had they "suffered alongside" the disadvantaged group. The same principle will apply in respect of other relevant EU Directives and protected characteristics. Whilst the Equality Act 2010 conflicts with this ruling, prospective claimants should be able to rely directly on the EU Directives before the UK Courts and Tribunals on the basis that the fundamental EU principle of non-discrimination is engaged (CHEZ Razpredelenie Bulgaria C-83/14).
The EU Race Directive prohibits direct and indirect discrimination based on racial or ethnic origin. The Race Directive provides that direct discrimination covers less favourable treatment "on the grounds" of race or ethnic origin. In Coleman v Attridge Law and another (Coleman) the ECJ held that the concept of direct discrimination was wide enough to include discrimination "by association". This means that claimants do not need to possess the relevant protected characteristic themselves. Instead, a claim can be based on the protected characteristic of someone with whom the claimant is associated. Although Coleman concerned disability discrimination, the concept applied across the other characteristics protected under EU anti-discrimination law. In the UK, the Equality Act 2010 provides that associative direct discrimination claims are permitted for all protected characteristics, save marriage and civil partnership.
The EU Race Directive provides that indirect discrimination covers situations where a provision, criterion or practice (PCP) would "put persons of a racial or ethnic origin" at a particular disadvantage, unless the PCP can be objectively justified. On the face of it, the wording used suggests that the claimant must possess the protected characteristic in order to be able to pursue a claim. In the UK, section 19 of the Equality Act 2010 provides that claimants must possess the protected characteristic in question.
In this case the ECJ considered whether an individual had suffered indirect race discrimination by association. Although this case concerned the supply of services, the same principles apply in the employment context.
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.
This ruling has significant implications for UK discrimination law and means that the indirect discrimination provisions in the Equality Act 2010 are inadequate. However, the UK courts have held that EU Directives can be relied upon directly by claimants where the Directive gives effect to a fundamental right contained in the EU Charter, such as the principle of non-discrimination. This means that prospective claimants in the UK should be able to bring associative indirect discrimination claims by relying on the relevant EU Directive directly.
The decision could open the door for claimants to bring discrimination complaints which were once not available to them. For example, a policy of full-time work may have once provoked indirect discrimination complaints from women (who have traditionally had a greater need for part-time working arrangements due to childcare responsibilities) and/or disabled employees (where the disability negatively affected their ability to work full-time hours). Now, a male employee wishing to work part-time for childcare reasons may be able to argue that he has suffered associative indirect sex discrimination as a result of such a policy. Similarly, an employee who has a condition which makes it difficult for them to work full-time hours but who does not strictly meet the Equality Act 2010 definition of "disability" (e.g. if the condition is not "long-term") may be able to argue that they have suffered discrimination on the basis that they have suffered alongside disabled employees.
CHEZ Razpredelenie Bulgaria C-83/14