Provision of services case has implications for employers
In a recent case Chez Razpredelenie Bulgaria v Komisia, the European court had to consider whether an apparently neutral practice, which disadvantaged people of Roma origin, could also be considered to discriminate against non-Roma people living in the same locality and suffering the same disadvantage.
Facts
An electricity company installed meters in one district in a town in Bulgaria at a height of between six and seven metres. In other parts of the same town, meters were placed at a height of 1.70 metres. The company argued the difference in treatment was justified by the increased frequency of tampering with meters and numerous unlawful connections to the network in the district concerned. The claimant in the case, Nikolova, ran a shop in the same part of the town. She contended that the installation of the meters in an inaccessible location was due to most of the inhabitants of the district being of Roma origin. Although she was not of Roma origin herself, she argued that she too was suffering discrimination because of this practice.
The Bulgarian Equality Commission upheld her claim, the electricity company appealed, and the Bulgarian Administrative Court referred a number of issues to the European court. The main questions were:
• Did installing these meters at a greater height than elsewhere in the town amount to direct and indirect discrimination on the grounds of ethnic origin?
• Could Nikolova bring a claim on these grounds even though she was not of Roma origin?
• What does the expression ‘particular disadvantage’ mean within the definition of indirect discrimination in European law?
CJEU
The Court of Justice of the European Union held that it was for the Bulgarian court to decide whether direct or indirect discrimination had taken place in this case, based on the following principles:
• Equal treatment applies not only to those of a certain ethnic origin, but also to those who suffer less favourable treatment or disadvantage because of a discriminatory measure, even though they are not of the same ethnic group. In other words, discrimination by association applies to both direct and indirect discrimination
• Although Nikolova was not of Roma origin, she considered that this racial characteristic was the reason why she had suffered ‘less favourable treatment’ or a ‘particular disadvantage'. So both direct and indirect discrimination claims in such circumstances were covered by the EU race directive
• The words ‘particular disadvantage’ did not mean there has to be a serious case of inequality. ‘Particularly’ means that the practice places ‘far more’ persons of a given ethnic origin at a disadvantage.
Comment
Although this case is to do with the provision of services, it applies to the interpretation of employment law and is a ‘game changer’ for a number of reasons.
The CJEU has clarified that being placed at a ‘particular disadvantage’ does not require a serious or significant inequality to be shown. The test is whether far more people possessing the protected characteristic are disadvantaged than persons not possessing it.
While it had already been accepted that direct discrimination can occur by association (for example, a non-disabled employee not being promoted because she needs to work flexibly to care for her disabled son), this ruling establishes that associative discrimination also applies to indirect discrimination – in other words, in a situation where a neutral practice disadvantages people of a specific ethnic group and a person not of the same ethnicity suffers the same disadvantage by association with that group.
This opens the door to a new type of potential claim. For example, banning holidays at a time when Eid al-Fitr occurs, and thereby particularly disadvantaging Muslim employees, may also permit a non-Muslim employee who is only able to take holiday in the ‘banned period’ to claim associative indirect discrimination.
The definition of indirect discrimination in Section 19 of the Equality Act 2010 does not comply, in part, with the European race directive, as the UK legislation requires the individual complainant to have the same race or ethnicity as the disadvantaged group. The equal treatment directives are framed in the same way as the race directive. This means the decision does not just affect race cases but also those dealing with religion or belief, sexual orientation, age and disability.
Makbool Javaid is a partner and head of employment law at Simons Muirhead and Burton
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