Associative indirect discrimination claims become a reality - new ECJ decision

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Summary: The ECJ has confirmed that individuals can claim indirect discrimination by association. This means someone who doesn't share the protected characteristic (eg. gender, race or age) of the disadvantaged group, but who suffers discriminatory disadvantage alongside that group , can still claim indirect discrimination. This is a significant extension of the existing UK law position, and is likely to make it more difficult for employers to manage indirect discrimination issues.

The ECJ has confirmed in CHEZ Razpredelenie Bulgaria C-83/14 that individuals can claim indirect discrimination by association. This means someone who doesn't share the protected characteristic (eg. gender, race or age) of the disadvantaged group, but who suffers disadvantage alongside that group, can still claim indirect discrimination. This is a significant extension of the existing UK law position, and is likely to make it more difficult for employers to manage workplace indirect discrimination issues.

Non-Roma claimant suffers 'collateral damage' from discriminatory policy against Roma people

CHEZ, an electricity supplier in Bulgaria, had a policy of installing electricity meters at a height of 6m in a predominantly Roma district in Bulgaria. In non-Roma areas, they were installed at 1.7m. The reason for this policy was to prevent tampering and illegal connections. Ms Nickolova, a local business owner and a non-Roma Bulgarian national, said that this placed her at a significant disadvantage because she could not verify her electricity readings. She claimed she had been indirectly discriminated against on grounds of race because, although not Roma herself, she suffered alongside her Roma neighbours.

The ECJ decided that Ms Nickolova could claim indirect discrimination, despite not being of Roma origin. The Race Directive should be interpreted to protect not only people of a certain ethnicity from suffering less favourable treatment because of a discriminatory measure, but also those who are not of the same ethnic group who suffer alongside them.

Implications for UK employers

Although this decision involves race discrimination in the provision of services, it should apply equally to indirect discrimination claims in the workplace on the basis of any protected characteristic, not just race. The ECJ decision blurs the line between direct and indirect discrimination, and is likely to make it more difficult for employers to identify those who, in a discrimination context, might be disadvantaged by a workplace rule or practice. For the same reason, attempts by an employer to objectively justify an indirectly discriminatory practice may well also become more complex.

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