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The CJEU Judgment in CHEZ: Indirect discrimination by association

The CJEU Judgment in CHEZ: Indirect discrimination by association

By Rachel Crasnow QC and Siân McKinley

Since C-303/06 Coleman v Attridge Law, a person may bring a claim for direct discrimination if they are treated less favourably because they are associated with a protected characteristic, such as disability or race, even if they do not share that protected characteristic.

In C-83/14 CHEZ Razpredelenie Bulgaria AD the CJEU has upheld a claim for indirect discrimination by association. In doing so CJEU may have changed the way we view the boundaries between direct and indirect discrimination.

Employment lawyers had some warning that this might occur after the opinion of Advocate General Kokott in March 2015; and some commentators were concerned about the impact of this decision (See: Indirect discrimination by association: a regressive step? by Dee Masters and Siân McKinley)

Facts

CHEZ supplies electricity. In predominantly Roma areas, electricity meters are placed 6m off the ground whereas meters are placed at 1.7m in areas which are not predominantly Roma. The reason cited for this practice is to prevent tampering with electricity meters and illegal electricity extraction, which CHEZ claimed were especially common in ‘Roma districts’.

The claimant ran a business within a predominantly Roma area in the Bulgarian town of Plovdiv, although she was not Roma. She argued that the height of the electricity meters placed her at a particular disadvantage because she was not able to see the meter to get readings, causing her estimated bills to be higher than they should be. Since she was “associated” with the Roma community because she was also affected by CHEZ’s policy on the height of electricity meters, she argued that she was the victim of indirect race discrimination by association.

Analysis

The CJEU has concluded that the Race Directive does not restrict the principle of equal treatment to persons who suffer discrimination based on their own racial or ethnic origin.

The principle of equal treatment is intended to benefit those people 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.

The CJEU considered the difference between direct and indirect discrimination:

  • If the measure which gives rise to a difference in treatment has been introduced for reasons relating to racial or ethnic origin, that measure must be classified as “direct discrimination”. It is sufficient that ethnic origin was a factor in CHEZ’s choice to place electricity meters at an inaccessible height.
  • By contrast, indirect discrimination on grounds of racial or ethnic origin does not require the measure at issue to be based on those reasons.

 

Certainly the CJEU considered that there were a number of factors which suggested the practice was based on ethnic stereotypes or prejudices, and therefore direct discrimination. Such factors included the facts that CHEZ had placed meters at an inaccessible height only in urban districts known to have predominantly Roma populations, and that CHEZ asserted that any damage to meters or theft of electricity was perpetrated mainly by persons of Roma origin. CHEZ adduced no evidence to support this assertion as it considered it to be “common knowledge”.

 Despite this strong indication that the measure was directly discrimination, the CJEU went on to consider whether the measure was indirectly discriminatory. It is this step which may lead to an increase in UK claims for both direct and indirect discrimination, or at least claims brought in the alternative.

 

Current UK law

Section 19 of the Equality Act 2010 states:

  1. A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.
  2. For the purpose of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if –
    1. A applies, or would apply, it to persons with whom B does not share the characteristic,
    2. It puts, or would put, person with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it.
    3. It puts, or would put, B at that disadvantage, and
    4. A cannot show it to be proportionate means of achieving a legitimate aim…                                                                                     (emphasis added)

Before CHEZ Ms Nikolova would not be successful under section 19 as she did not share the protected characteristic of race. Now the situation is not as clear.

In Benkharbouche v Embassy of Sudan [2015] EWCA Civ 33 the Court of Appeal held that Directives can be relied on “horizontally” (i.e. between private parties) if the Directive is giving effect to a fundament right contained in the EU Charter which does not require specific expression in national law, such as the principle of non-discrimination.

This means that a UK claimant could rely upon CHEZ to bring an indirect discrimination claim by association. To explain this, we set out a number of analogous examples.

 

Potential examples of indirect discrimination by association

Example 1          

An employer introduces a policy that all business is to be conducted in English.

Employees A and B are Polish and have only a basic knowledge of English.

Employee C is British and a native English speaker. However, employee A has a Polish partner and, as a result, is fluent in Polish. Employees A, B and C previously found it was easier and quicker to carry out business in Polish rather than English.

Prior to CHEZ only employees A and B could bring a claim for indirect discrimination. Employees A and B suffer a particular disadvantage in that they will find it harder to carry out business, compared to British employees for whom English is their first language.

Now employee C could potentially bring a claim, despite not sharing the protected characteristic of Polish nationality. Employee C suffers the same disadvantage as A and B as he will also find it harder to carry out business with A and B if he has to speak English.

 

Example 2

An employer introduces a policy that all employees eat lunch at their desks on Fridays so as to man the telephones.

Employee D is Muslim and previously had attended prayers at a mosque next to the workplace during his lunchtime on a Friday.

Employee E has a child in employer’s crèche (located in the employer’s basement). He does not identify as Muslim but does want to raise his child in the Muslim faith. He previously had picked up his child and had attended prayers at the mosque during his lunchtime on a Friday.

 

Prior to CHEZ, Employee D would previously have been able to bring a claim for indirect discrimination. The policy puts those of the Muslim faith at a particular disadvantage compared to those who are not of Muslim faith.

Now Employee E could potentially bring a claim, despite not personally sharing the protected characteristic of the Muslim faith.

 

What is meant by “association”?

We pause in our list of examples to emphasise that the CJEU did not consider the meaning of “association”.

Earlier, in AG Kokott’s opinion, she concluded that the concept of “association” is not limited to close personal relationships as in Coleman but should apply where any measure is discriminatory and has a “wholesale and collective character”.

However this restriction does not appear in the judgment of the CJEU. The association in CHEZ appears to arise from nothing more than the fact that Ms Nikolova was also disadvantaged. 

 

Example 2b

An employer introduces a policy that all employees eat lunch at their desks on Fridays so as to man the telephones.

Employee F previously played football on Friday lunchtimes.

In example 2, employee E suffers a particular disadvantage because of his association with his child whom he is raising in a particular religion. Employee F has no association to the Muslim faith but suffers the same disadvantage in that he is not able to leave the office during lunch times on Friday. Following the judgment of the CJEU in CHEZ, the employee F may have a claim despite the lack of association.

It is too early to say yet how CHEZ will actually impact on the domestic discrimination law landscape, but there will no doubt be arguments raised concerning comparative particular disadvantage under section 19(2)(b) EqA 2010 and how it is to be demonstrated that a particular disadvantage has been suffered pursuant to section 19(2)(c).

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