Indirect Discrimination - Extending the Scope of Protection?
The recent European Court of Justice's (ECJ) decision in CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia has extended the coverage of indirect discrimination in the context of the provision of goods and services.
How will it apply in the employment context?
Indirect discrimination occurs when an otherwise neutral measure has a more detrimental impact on a group sharing a particular protected characteristic (protected group). Protected characteristics under the Equality Act 2010 include age, sex, pregnancy and maternity, sexual orientation, race, nationality, religious belief and disability.
To succeed in a claim of indirect discrimination a claimant would need to show that the measure in question not only results in the protected group suffering less favourable treatment or a particular disadvantage, but also that they individually suffered the less favourable treatment or particular disadvantage resulting from that measure.
The question in this case was whether a claimant could be successful in an indirect discrimination claim even if they do not share the characteristic of the protected group.
The case concerned Ms Nikolova, who ran a grocery in a particular district of Bulgaria. That district was mainly inhabited by persons of Roma origin.
The electricity company for the region installed electricity meters for all consumers in the area at a height of six and seven metres. This was by contrast to other regions where metres were set at a height of 1.7m. The reason given was that it was to combat attempts to tamper with meters and unlawfully connect to them.
Ms Nikolova was not of Roma origin but brought a claim on the basis that she was discriminated against on the ground of race by the placing of the electricity meters so high.
The case was pursued on the basis of indirect discrimination, although it is worth noting that if the decision of the electricity company was an example of racial profiling (i.e. a measure introduced because of a belief that those of Roma origin were more likely to tamper with the meters) then this might well have fallen within the definition of direct discrimination.
The key question for the ECJ was: could Ms Nikolova pursue a claim of indirect discrimination even though she did not share the protected characteristic of the protected group?
The ECJ has held that the answer is yes. It held that the purpose of protection from indirect discrimination is 'to benefit all persons who, although not themselves a member of the race or ethnic group concerned, nevertheless suffer less favourable treatment or a particular disadvantage on one of those grounds'.
This meant that even though Ms Nikolova was not of Roma origin, she was the victim of indirect discrimination as she suffered from the same less favourable treatment as a result of the meters being placed so high.
Best Practice
This is a very interesting decision which could well have ramifications in the employment law context. It could open the way for employees to argue that they have been the victim of indirect discrimination even where they do not share the protected characteristic of the protected group.
There are however some important caveats:
Firstly, a claimant will still need to show that they themselves have suffered the same less favourable treatment or particular disadvantage as the protected group. It will also remain incumbent on a claimant to show why both they and the protected group is placed at a particular disadvantage by the measure in question. In that context the recent decision in Essop v Home Office will remain relevant.
Although there is some debate, we are also of the view that a claimant would need to show that the reason that they have suffered less favourable treatment or particular disadvantage is the same as the protected group. In this case the reason why Ms Nikolova suffered less favourable treatment was because the meters were fixed so high - which was the same disadvantage suffered by those of Roma origin.
Finally, as with all cases of indirect discrimination, it will be open to an employer to show that a measure is objectively justified on the basis that it is a proportionate means of achieving a legitimate aim.