The judgment in the case of CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsias is inconsistent with the Equality Act 2010 (EA2010),. Since being handed down on 16th July 2015,.there is the real potential that it will have substantial ramifications on the law governing discrimination in the workplace.
Under section 19 of the EA 2010, indirect discrimination occurs when a seemingly neutral practice, provision or criterion (PCP) puts a group of people with a particular protected characteristic (sex, age, sexual orientation, religion or belief, race) at a disadvantage when compared to other people who are also subject to the same PCP. The different elements that form part of indirect discrimination make it clear that the claimant has to share the relevant protected characteristic in order to substantiate his/her claim. This very element is lacking in the Equality Directive and while this may have been thought to be a negligible difference between the directive and the EA 2010, it may now provide fresh ground for reforming this part of the law.
The case concerned an electricity supplier which placed electricity metres at an inaccessible height (six metres) in a particular district of a Bulgarian town which was inconsistent with the normal height in other districts of 1.7 metres. The company argued that this was justified due to the high level of tampering with, and damage to, meters and because of the numerous unlawful connections to the network in the district concerned.
Ms Nikolova, the claimant argued that Gizdova Mahala was the only district in the town of Dupnitsa to be affected by the issue at hand and the reason for this was that the majority of residents in the district were of Roma origin. She asserted in her race discrimination claim, that while not of Roma origin, she was subject to the same disadvantage as her Roma neighbours. This failure to satisfy the protected characteristics would have been the end of her claim under the EA2010.
The European Court of Justice adopted a different approach however and held that: ‘It is important to protect all natural persons against discrimination on grounds of racial or ethnic origin. Member States should also provide, where appropriate and in accordance with their national traditions and practice, protection for legal persons where they suffer discrimination on grounds of the racial or ethnic origin of their members.’ In a nutshell, this means that a claimant is not required to possess the protected characteristic in question in order to be entitled to protection under the Equality Directive provided s/he suffered a particular disadvantage.
The ECJ seems to have adopted the approach taken by the Advocate General (AG) in her advisory opinion. She said that ‘[d]iscussion of discrimination problems sometimes focuses on the specific fate of one individual. That is not the situation in this case, which concerns the prohibition of discrimination based on ethnic origin under EU law. The case does ultimately stem from a complaint lodged by one individual; however, the centre of interest is the wholesale and collective character of measures which affect an entire community and are liable to stigmatise all the members of that community and their social environment.’ The AG considered that indirect discrimination encompasses instances, where a practice has a disparate impact on a protected group but also causes “collateral damage”. This holistic approach considerably extends the scope of indirect discrimination to include discrimination by association.
Has this judgment brought a potential loophole in the EA 2010 into the limelight or has the European Court of Justice gone too far in its bid to become more employee friendly? Some might argue that the judgment has opened the floodgates to allegations, perhaps unfounded, of discrimination.
In the employment context, the judgment in CHEZ opens up the real possibility of profound implications for employers who may find themselves subject to discrimination claims in a wider range of scenarios. For example, in the context of religion and belief, a requirement to work on Sundays is capable of amounting to a PCP that affects predominantly those who belong to the Christian faith as they usually go to Church on Sundays. While this is something that employers often have to consider, they now have to look out for their non-Christian employees who may also pursue a claim. Although it may be premature to make any predictions, employers may be required somewhere down the line to revisit their PCPs in order to accommodate the more flexible application of this area of the law.
All in all, this approach to indirect discrimination could prove a key battleground for employment law. It remains to be seen how the Employment Tribunals will fulfil their duty to interpret UK statutory provisions consistently with any underlying EU directive so far as is possible.
It will be interesting to see the development of discrimination law post the ECJ judgment in this case, amid deliberations about the UK’s future in relation to its European Union membership.