Decision: CHEZ Razpredelenie Bulgaria C-83/14, heard by the European Court of Justice, involved a claimant who owned a shop in a district where the electricity provider installed electricity meters at an increased height compared to other districts. This was to avoid people tampering with the meters. The district was predominantly inhabited by people of Roma ethnicity and although the claimant was not of Roma origin herself, she claimed that Roma people were disproportionately affected by the electricity provider’s policy since they were unable to monitor their electricity usage (as a result of the height at which the meters were located) and she suffered the same disadvantage. The ECJ confirmed that the electricity company’s policy was discriminatory, even though it applied equally to non-Roma living in the district as well as those of Roma origin. It has been well established in the UK that an associative discrimination claim can be brought in relation to direct discrimination. However, it is in relation to indirect associative discrimination that this decision is radical.
Continued impact: Although this decision relates to the supply of goods and services, it may have a significant impact on discrimination law under the Equality Act 2010 (the “EqA”). This decision blurs the lines between direct and indirect discrimination in relation to the tricky area of associative discrimination. It would appear that s19 of the EqA is out of step with the UK’s European obligations since it restricts claims of indirect discrimination to those claims where individuals share a protected characteristic with a group who are disadvantaged by a particular provision, criterion or practice (i.e. it does not allow claims of indirect discrimination by association). This means that Tribunals will be invited to read words into the EqA to disapply that particular requirement or work around it so that it will be sufficient for an individual to show that they have suffered alongside the disadvantaged group even if they do not share the same protected characteristic. This decision widens the class of who will be able to claim for unlawful indirect discrimination. Employers will need to think carefully about how a group of individuals might be disadvantaged, even if they do not possess the characteristics protected by the EqA.
CHEZ Razpredelenie Bulgaria C-83/14