The European Court of Justice (ECJ) has held that an indirect discrimination claim can be brought by a person not possessing a protected characteristic (‘associative discrimination’).
In this case, Ms Nikolova (a non-Roma individual) ran a shop in a district in Bulgaria which is predominantly populated by Roma. The electricity supplier to the district installed electricity meters on electricity poles over 4 metres higher than those installed in other districts. The reason for the difference was that there had been a large number of cases of people tampering with electricity meters and a frequent occurrence of unlawful connections to the electricity network in Roma districts. The height of the meter prevented Ms Nikolova from reading it and assessing how much electricity she was using. She alleged that her electricity bills were excessive compared to her actual consumption and suspected that the electricity supplier had applied an excessively high consumption value to compensate for losses elsewhere in the district.
Ms Nikolova presented a complaint alleging that she had been discriminated against on the grounds of her ethnicity on the basis that she identified herself with the Roma in her district. The ECJ held that the protection offered by the indirect discrimination provisions of the European Directive applied irrespective of the ethnic origin of the person suffering the particular disadvantage. It is enough that the person suffers alongside those of a certain ethnic origin, provided the treatment stems from a measure based on ethnic origin. However, the ECJ also held that this practice may be capable of objective justification. The security of the electricity supply is a legitimate aim but it would need to be determined by the national court whether the measures taken by the electricity supplier were appropriate and necessary.
What does this mean?
Although this decision relates to the supply of goods and services, it has far reaching implications in the employment context. A person may, therefore, claim indirect discrimination even though they do not possess the protected characteristic which has given rise to the discriminatory practice in question. Such an individual may suffer a disadvantage without sharing the characteristic of the disadvantaged group.
This is contrary to the UK position as reflected in section 19 of the Equality Act 2010. Due to this case, the concept of associative discrimination can no longer be regarded as confined only to direct discrimination law as UK courts have an obligation to give effect to European decisions.
What should employers do?
Employers should be alert to the possibility of indirectly discriminating against staff who suffer alongside a group who are disadvantaged as a result of them having a protected characteristic.
Case reference: CHEZ Razpredelenie Bulgaria