The ECJ has ruled that the EU concept of indirect discrimination permits claims to be brought by individuals who are not actually part of the protected group disadvantaged by a policy, if they “suffer alongside” that group.
The ruling in Chez Razpredelenie Bulgaria concerned the provision of goods and services, but the same concepts apply in employment law. Here, a policy of placing electricity meters at a greater height in a certain area with a history of tampering and unlawful connections was indirectly discriminatory against members of the Roma ethnic group who formed a majority of those living in the area; a non-Roma inhabitant of the area suffered from the policy alongside the Roma inhabitants and the ECJ ruled that she was also able to claim indirect race discrimination.
The Equality Act currently prohibits associative direct discrimination (eg associative disability discrimination where an employee is dismissed because he has a disabled son) but does not prohibit associative indirect discrimination (eg where a policy of requiring full-time work disadvantages an employee who cares for and so is ‘associated with’ a disabled person). Under UK law, the claimant in an indirect discrimination case must show he is a member of the protected group which is disadvantaged by a policy and that he suffers that disadvantage. However, because the principle of non-discrimination is a fundamental principle of EU law, claimants may be able to rely on this new ECJ ruling even against private employers.
Employers may therefore face claims from individuals who ‘suffer’ from a policy which disadvantages a group with a protected characteristic such as gender, race and so on, even where the individual is not a member of that group. An obvious example is the working father who may claim that he too suffers from a policy to require full-time work which is indirectly discriminatory against working mothers.
No doubt there will be arguments as to whether the nature of the ‘suffering’ must be the same. Is the person who wants to work part-time in order to improve his golf handicap “suffering alongside”? Will the employee who cares for a disabled dependent and needs a particular reduced hours pattern in order to take them to medical appointments also be able to rely on the working mother associative claim, or will he need to point to the same suffering of disadvantage by disabled employees?
The potential for indirect discrimination claims has clearly been increased by this ruling. The case highlights the importance of carefully considering the potential discrimination angles when devising workplace rules and policies.