Under the Equality Act 2010, in order to make a claim of indirect discrimination, the individual must have the “protected characteristic” in question. The ECJ however have now cast doubt on whether this legislation is compatible with the EU Directive underpinning it (CHEZ Razpredelenie Bulgaria AD v Komisia).
Whilst this particular case related to the supply of electricity in Bulgaria, the same principle will apply in employment relationships. Here, a non Roma resident of a largely Roma area in Bulgaria believed she was indirectly discriminated against in the supply of her electricity because of the fact she lived in a Roma neighbourhood. The ECJ found that she could bring an indirect discrimination claim, despite not having the relevant protected characteristic (being Roma), on the basis she was suffering indirect discrimination because of other people’s protected characteristic. It is sufficient that the person suffers alongside those of a certain ethnic origin, provided the treatment stems from a measure based on ethnic origin.
As this relates to a general principle of EU law, the UK courts considering a claim under the indirect discrimination provisions would have an obligation to disapply any wording that conflicts with the Directive. Courts could also, where necessary, be able to read additional words into the legislation in order to make it compatible with EU law. This has major implications for the UK as the Equality Act provisions do not allow for this as drafted.