In a decision which will have a significant impact on UK equalities law, the European Court of Justice has answered the question of whether 'associative' discrimination can apply to indirect discrimination, as well as direct discrimination. Sarah Maddock reports.

The background

The case reported below concerned the supply of goods and services under the EC Race Directive ('the Race Directive') - but the general principles apply equally to concepts of discrimination in employment law.

Article 2 of the Race Directive prohibits direct and indirect discrimination based on racial or ethnic origin (mirroring the concepts of direct and indirect discrimination under the Equality Act 2010).

An explanatory note to the Equality Act 2010 confirms that direct discrimination claims can be based on an 'association' with someone who has one of the 'protected characteristics' set out in the Act (apart from marriage and civil partnership). So, a claimant in a direct discrimination claim does not need to have a protected characteristic themselves; they may be able to bring a claim on the basis of their association with someone who has a protected characteristic. The 'protected characteristics' are: sex, gender reassignment, marital / civil partnership status, pregnancy / maternity, race, disability, sexual orientation, religion or belief and age.

Under UK legislation, it is not possible to bring a claim for indirect discrimination 'by association'.  In order for a claim of indirect discrimination to succeed, the claimant must have a 'protected characteristic' themselves.

The facts

Ms Nikolova runs a shop in the Gizdova district of Dupnitsa in Bulgaria. The majority of people living in this district are from the Roma ethnic group; but Ms Nikolova is not Roma herself.

Chez Razpredelenie Bulgaria (CRB) is the electricity supplier to the district.  In the Gizdova district, CRB has fixed electricity meters (which show customers their usage) approximately six metres up the electricity poles. In other areas, the meters are fixed to the poles at a much lower height of around 1.7 metres. CRB said that the reason for the difference was that there had been a large number of cases of tampering with electricity meters in those districts.

Ms Nikolova complained that the height of her meter prevented her from reading it and checking how much electricity she was using. She suspected that CRB was overcharging, to compensate for losses elsewhere in the district.

Ms Nikolova alleged that she, and the Roma people, had been discriminated against by the placing of the meters.  Although Ms Nikolova is not Roma herself, she 'identified' with the Roma people in the district where her shop was based and suffered a detriment as a result of the practice of placing the electricity meters out of reach.

In CHEZ Razpredelenie Bulgaria AD v Komisia za Zashtita ot Diskrimisnatsia the ECJ was asked to determine whether CRB's practice constitutes discrimination against Ms Nikolova on ethnic grounds for the purposes of the Race Directive.

The decision

In March 2015, the Advocate-General published her Opinion that CRB's practice could constitute indirect discrimination, and that it would be possible to make a finding of indirect discrimination 'by association'.

The Advocate-General thought that there was nothing to prevent the concept of associative discrimination being applied more widely, beyond direct discrimination. The Advocate-General used the example of an employer which only allowed access to its nursery to the children of full-time employees: if the majority of the full-time employees were male, then the practice of restricting nursery places to their children would be indirectly discriminatory against female employees, by association; she felt that the fact that this restriction amounted to "merely" indirect discrimination made no real difference.

The ECJ broadly agreed. It accepted that although Ms Nikolova is not of Roma origin herself, the fact remained that 'Roma origin' was the basis on which she considered she had been subjected to a disadvantage. The ECJ therefore concluded that protection under the Race Directive must be afforded to those who have a particular ethnic origin and who are disadvantaged under a policy; and also to those who do not have the same origin but nonetheless suffer a disadvantage with them. 

What does this mean for me?

Although this decision concerns goods and services, the same principles would apply in the employment sphere.  As our domestic law requires that a claimant must have suffered a disadvantage because of their own 'protected characteristic', it appears that the Equality Act 2010 is incompatible with the Race Directive. 

This opens up the possibility of 'indirect associative discrimination' as a new type of claim open to workers – either through amendment of the Equality Act or by an employment tribunal disapplying inconsistent wording or 'reading words into' the Act.   

The practical effect of this is that it would be prudent for you to guard against the possibility of an 'indirect associative discrimination' claim by reviewing your policies, procedures, practices, and equalities training. If any 'indirect associative discrimination' is a risk, then you would need to consider whether the practice in question is objectively justified.

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