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Race Directive Covers Associative Indirect Discrimination

22-July-2015
22-July-2015 12:15
in Employment
by James Tunley

The ECJ in CHEZ Razpredelenie Bulgaria AD v Komisia za Zashtita ot Diskriminatsia (Case C-83/14) EU:C:2015:480;  [2015] WLR (D) 314 has backed Advocate General Kokott’s ruling and held an individual may claim indirect discrimination under the EU Race Equality Directive (No.2000/43) (“the Race Directive”) by means of association with a group that is disadvantaged even if the individual is not of the same ethnic or racial group.

 

Background

The case involved an electricity supplier, CHEZ Razpredelenie Bulgaria AD (“CHEZ RB”) based in Bulgaria. CHEZ RB supplied electricity to the district of Dupnitsa in Bulgaria which was predominantly populated by people of Roma ethnicity. As a company CHEZ RB decided to fix the electricity meters at a height of approximately 6 meters in this district as opposed to the usual 1.7 meters in other areas ostensibly because there had been many cases of meter tampering and unlawful connections to the electricity network in this area.

N ran a shop in the district and complained to the Bulgarian Commission for Protection against Discriminations (KZD). She alleged that the reason for the height of the meters was that most inhabitants were of Roma origin. She complained she was unable to monitor her electricity and check her usage against her bills, which she thought were incorrect.  N argued that Roma people were disadvantaged by CHEZ RB’s practice compared with other persons. Although not of Roma origin herself, she assimilated herself to the population of Roma origin in the district and suffered the same disadvantage.

The KZD ruled in her favour stating that she had been subject to indirect discrimination on grounds ethnicity.

Decision

The ECJ was asked whether, with regards to the Race Directive, CHEZ RB’s practice did in fact constitute discrimination against N on ethnicity grounds. Advocate General Kokott recognised CHEZ RB’s actions affected both people possessing the protected characteristics at issue and those affected by association – collateral damage. Therefore N, should be able to succeed in her claim of indirect discrimination even though she herself was not of Roma ethnicity.

The ECJ broadly agreed with Advocate General. Although N was not of Roma origin, she felt that she was treated less favourably on the basis of ‘Roma origin’. Articles 1 and 2(1) of the Directive cover both direct and indirect discrimination and the ECJ held they must be interpreted as applying to the CHEZ RB’s policy in this case.

Significance

It is our view that this could have a major impact on UK employment law, as currently indirect discrimination under S.19 of the Equality Act 2010 is only established if the individual has the same characteristics as the disadvantaged group. In other words S.19 does not cover associative indirect discrimination. The ECJ ruling that this type of discrimination is prohibited by the Race Directive effectively rules S.19 of the Equality Act incompatible.

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