The case of CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsi has sent electrifying sparks through discrimination law and may have significant implications on potential claims of associative indirect discrimination in the workplace.
UK Discrimination Law
Indirect discrimination is where an apparently neutral practice has an effect that particularly disadvantages people with a particular ‘protected characteristic’, such as race or age.
The concept of indirect discrimination is implemented in the UK by section 19 of the Equality Act 2010. Under this Act, a claim of indirect discrimination is only possible in the claimant has the same characteristic as the protected group. In other words, the Equality Act 2010 does not presently cover associative discrimination.
CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsi
This case concerns a Bulgarian energy company’s practice of installing electricity meters in districts inhabited predominately by people of Roma ethnic origin at a height greater than in other districts. This meant that the electricity meters were inaccessible for visual checks by the district’s inhabitants. The reason cited for this practice by the utility company was to prevent crime, on account of high levels of tampering with the meters, which they said was particularly common in Roma districts.
The claimant, Ms Nikolova, was a woman of non-Roma origin who ran a shop in a district where the electricity meters had been fixed at an inaccessible height. Ms Nikolova alleged that her electricity bills were excessive compared with her actual consumption. She brought an indirect race discrimination claim against the Bulgarian energy company on the basis that she suffered the same disadvantage as her Roma neighbours in that they were unable to monitor their electricity usage as the meters were inaccessible. Ms Nikolova argued that the Roma people were disproportionately affected by the policy and, although she was not Roma herself, she identified with the Roma in the area where her shop was based.
The ECJ ruled in Ms Nikolova’s favour and stated that she had been subject to indirect discrimination on the grounds of ethnicity, even though she herself was not of Roma ethnicity. Accordingly, the case demonstrates that the indirect discrimination provisions of the EU Race Discrimination Directive (2000/43) can apply to persons disadvantaged by association with a protected characteristic.
Whilst this case was concerned with the EU Race Discrimination Directive (2000/43), it is very likely that the ECJ’s ruling will apply in relation to other protected characteristics.
Significance to UK Discrimination Law
It is well established that direct discrimination by association is prohibited by EU law but this is the first time that the ECJ has considered whether indirect discrimination by association is also covered, and concluded that it is.
This decision has potentially significant implications for UK law as its Employment Tribunals are obliged to interpret UK statutory provisions consistently with EU case law. Accordingly, this case potentially extends the scope of indirect discrimination under the Equality Act 2010 and we may see UK Employment Tribunals allowing associative indirect discrimination claims. However, the full extent of the ramification of the ECJ’s judgment on UK discrimination law will only become apparent over time and we will be following this area with great interest.