That was one of the issues in a recent case involving CHEZ, the local electricity supplier in a predominantly Roma district of Bulgaria. They normally fixed their meters at a height of 1.7 metres from the ground. However, the claimant, Ms Nikolova ran a shop in an area that was predominantly populated by members of the Roma community, and in that area there had been a large number of cases of tampering and unlawful connections. As a result CHEZ chose to fix their metres in that location at a height of 6 metres.
That meant Ms Nikolova was not able to use the meter, as it was set too high for her to read it properly. She said she was also receiving very high bills because CHEZ was wanting to compensate for the losses they were suffering elsewhere in the district.
So was Ms Nikolova able to bring a claim, notwithstanding the fact that she was not Roma herself? According to the European Court the issue was whether the person suffered alongside members of a particular ethnic origin, on account of a measure based on ethnic origin. It did not matter whether the Claimant had the ethnic origin at issue.
They also said it was for the Respondent (CHEZ in this case) to prove that there has been no discrimination. In other words the burden of proof was on them. They could claim they had a legitimate aim in ensuring that the electricity supply was secure, and that customers were able to monitor the electricity they consumed, but it was for the national court to determine whether the measures they had introduced (to achieve those legitimate aims), were proportionate.
We must now wait to see how this development plays out in practice, not least because it is not entirely in accordance with the indirect discrimination provisions of the Equality Act. These specifically relate to a “relevant protected characteristic” of the claimant. This would obviously not apply in Ms Nikolova’s case, because she was not a member of the Roma community.
The new principle may have other ramifications. For example, it has been suggested that a man seeking flexibility to work part-time for child care reasons, may claim indirect discrimination, despite the fact that it is women who traditionally have, in the absence of flexibility, claimed disadvantage. Similarly, whilst a ban on holidays at the time of a religious festival, may disadvantage members of the particular religion affected, it might also hand the possibility of a claim to those who are not members of the religious group, if they want to take holiday at that time.
Another interesting factor is that there is currently talk of potentially transferring discrimination claims relating to the supply of goods and services away from the County Court over to the Employment Tribunal (either in its current form or following a restructure). Given the relationship between discrimination relating to goods and services, and discrimination in an employment context, this new proposal may well help practitioners and judges ensure the jurisprudence remains consistent between the two.