Posted by Gemma Ospedale, Partner
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Associative Discrimination extends to Indirect Race Discrimination.
An ECJ case, CHEZ Razpredelenie Bulgaria AD v Komisia za Zashtita ot Diskriminatsia, IDS 1026 page 15 has extended the principle of discrimination by association first made in Coleman v Attridge Law and Another from disability discrimination to indirect race discrimination.
An electricity supplier in Bulgaria had a policy of placing its electricity meters 6 to 7 metres off the ground in one particular region, whereas in other regions the meters were fixed at around 1.7 metres off the ground. The height difference was because of a large number of cases of meter tampering and unlawful connection to the electricity network in the relevant district, which was predominantly populated by people of Roma origin.
The claimant, who was not Roma, brought a claim before the Bulgarian Commission for Protection against Discrimination (KZD) that she was adversely affected by this policy and therefore discriminated against on grounds of ethnicity/race . She argued, amongst other things, that the Roma people were disproportionately affected by this policy and, although not Roma herself, she identified with those in the district where her shop was based. Her problem was that, because the meters were placed so high up, she could not read the meter herself. The KZD held that she had been treated less favourably by the electricity provider on the ground of ethnicity. This was appealed and the Appeal Court referred several questions to the ECJ, one of which was whether this practice constituted discrimination of the claimant on ethnic grounds for the purposes of the EU Race Directive and, if so, whether the discrimination was direct or indirect. Although this case concerned provision of goods and services, there are obviously elements which are extremely relevant to employment law.
The ECJ looked at the provisions of the Race Directive, and in particular those relating to direct and indirect discrimination. It came to the conclusion that the language of the Directive in referring to less favourable treatment on the ground of “racial or ethnic origin” rather than the individual’s race or ethnic origin, together with established case law (that the Directive cannot be interpreted restrictively because of the nature of the rights which it seeks to safeguard), allowed it to interpret Article 1 of the Race Directive to mean that the equal treatment principle does not just apply to a particular category of person possessing a certain racial or ethnic origin, but applies to racial or ethnic origin more generally. Therefore the analogy of the Coleman case allowed the Directive to extend to those who, while not a member of the race or ethnic group concerned, nonetheless suffered less favourable treatment or a disadvantage on the grounds of that race or ethnic origin. The disadvantage here was the inability to read the meter because the electricity company placed the meters at a particularly high level off the ground specifically to prevent a particular group of people who belonged to a particular ethnicity to reach them.
The ECJ did not rule out the possibility of direct discrimination having taken place, but considered that this practice demonstrated the requirements of indirect discrimination – being a practice which, on the face of it, looks neutral but disproportionately disadvantages people with a particular ethnic origin considerably more than those who are not of that origin.
This is potentially a very significant decision because the interpretation of indirect discrimination by the ECJ appears to be contrary to the test in section 19 of the Equality Act. This case is commented on in the Foreword attached.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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