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Indirect discrimination: the net widens (but hopefully not too much)

The recent ECJ decision in the Bulgarian case of CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsias, whilst not widely reported, has the potential to lead to a fascinating (at least from a lawyer’s perspective!) widening of the scope of the protection from indirect discrimination.

The case involved an electricity supplier which installed its electricity meters in one specific district of a Bulgarian town at a height of six metres rather than the usual height of just under two metres, a practice that it sought to justify on the grounds of high levels of meter tampering and unlawful connections to the network in the area – an area inhabited mainly by people of Roma ethnic origin.

Whilst it does seem arguable that this was in fact direct discrimination against Roma people, given that the company’s practice appeared to be based on racial stereotyping of Roma people as being responsible for the unlawful behaviour, the ECJ accepted the case as pleaded: as one of indirect discrimination.  In any case, the key fact is that the claim was brought by a woman of non-Roma origin who ran a shop in the district, who alleged that she suffered the same disadvantage as her Roma neighbours.

In line with the preceding opinion of its Advocate General, the ECJ agreed with the Claimant that the indirect discrimination provisions of the Race Discrimination Directive apply irrespective of the racial or ethnic origin of the person suffering the particular disadvantage: ie the provisions apply to persons who suffer “less favourable treatment” (direct discrimination) or a “particular disadvantage” (indirect discrimination) on the ground of that race or ethnic origin even where they don’t share the race or ethnic origin of the protected group.  Just as importantly, the ECJ also found that the wording of the Directive permitted this wide interpretation.

Given the obligation on Employment Tribunals to interpret UK statutory provisions in line with any underlying EU directive so far as is possible, the ECJ’s decision clearly opens the door for creative Claimants to bring indirect discrimination claims where they don’t share the relevant protected characteristic but nevertheless consider that they have ‘suffered’ alongside an actual or hypothetical protected group.  One writer has suggested the interesting example of an employer requiring staff to work on a Saturday, which is indirectly discriminatory (and therefore unlawful, unless it can be objectively justified) against Jewish employees who observe the Sabbath – a situation which, following the CHEZ case could lead to non-Jewish workers disgruntled by having to work Saturdays bringing indirect discrimination claims.

Whilst of course the scenarios in which someone not sharing the protected characteristic is also affected by the provision, criterion or practice are likely to be relatively limited, this case does throw up the possibility that employers will be forced to justify such provisions, criteria and practices in contexts which might not initially have been expected.  As ever, the situation will be clarified as and when further cases in this area are decided.

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