Indirect discrimination by association: An end to the confusion (at last)
Written by Dee Masters and Olivia-Faith Dobbie
In this blog, Dee Masters and Olivia-Faith Dobbie from Cloisters chambers explain the current state of the law on indirect discrimination by association.
Summary
The draft The Equality Act 2010 (Amendment) Regulations 2023 were published on 8 November and are due to take effect on 1 January 2024. Their purpose is to reproduce in domestic law certain features of retained EU law which would otherwise disappear at the end of 2023 (Explanatory Memorandum). To that end, a new section 19A will be added to the Equality Act 2010 putting the decision in C-83/14 CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia (CHEZ) on a statutory footing.
The wording of the new section is hugely important because it finally puts to bed the hotly-debated issue of the true scope of CHEZ. In essence, it confirms our interpretation of CHEZ - that it only extends the scope of indirect discrimination insofar as the victim suffers the same disadvantage as the group or person that is discriminated against, irrespective of the relationship between the victim and that group or person (i.e. the association between them).
Indeed, we consider that the term discrimination by “association” is unhelpful and confusing. It is more apt to categorise CHEZ type claims (soon to be s 19A type claims) as “discrimination by ricochet”, a term which was originally coined by Advocate General Kolkott in CHEZ. This phrase is more accurate as it encapsulates the idea that someone should have a claim where they are a secondary victim/collateral damage to discrimination which primarily affects another. The relationship between the primary and secondary victim is incidental rather than an ingredient to the claim.
Primary vs secondary victims
Central to the analysis in CHEZ and s.19A is a distinction between primary and secondary victims. This is illustrated by the facts in CHEZ (even though this language is not used in the judgment).
CHEZ installs electricity meters. Ordinarily they were installed in people’s homes making them accessible and easy to read. In areas perceived as Roma, electricity meters were placed on electricity pylons at 6-7m height meaning that they are largely inaccessible. This is explained by the CJEU in the following way:
“ … It is … common ground between the parties to the dispute that the practice at issue is, more generally engaged in only in the “Roma districts” of various Bulgarian towns. That is the principal factor determining CHEZ RB’s choice regarding the placing of the electricity meters at an inaccessible height and, even though CHEZ RB does not state expressly that it considers that it is above all persons of Roma origin who make unlawful connections, this is apparent from the context” (para 30).
The primary victims of CHEZ’s decision to place electricity meters out of reach were the Roma people who were effectively targeted due to the belief that Roma people were more likely to steal electricity than non-Roma communities. The secondary victims were the non-Roma people who lived and worked alongside the primary victims in the affected community. The claimant in CHEZ was one such secondary victim: a shop owner who was unable to read her meter due to its inaccessible height.
There is ambiguity in the judgment, but we consider that the most natural interpretation of CHEZ is that it extends indirect discrimination claims[1] to where there is an inability to distinguish between primary and secondary victims in relation to the negative impact of the PCP (the practice that electricity meters are 6-7m high). In other words, where a person faces the same disadvantage flowing from the discrimination of another, by way of collateral damage.
60 … the answer to the first question is that the concept of 'discrimination on the grounds of ethnic origin', for the purpose of Directive 2000/43 and, in particular, of Articles 1 and 2(1) thereof, must be interpreted as being intended to apply in circumstances such as those at issue before the referring court - in which, in an urban district mainly lived in by inhabitants of Roma origin, all the electricity meters are placed on pylons forming part of the overhead electricity supply network at a height of between six and seven metres, whereas such meters are placed at a height of less than two metres in the other districts - irrespective of whether that collective measure affects persons who have a certain ethnic origin or those who, without possessing that origin, suffer, together with the former, the less favourable treatment or particular disadvantage resulting from that measure.” (Emphasis added)
Accordingly, we have always disliked the term “indirect discrimination by association” as it implies some type of personal relationship between the primary and secondary victims is necessary, whereas the CHEZ extension is not about relationships. It states instead that primary and secondary victims should be protected to the same extent where they are essentially indistinguishable in terms of the impact of the measure which is said to be indirectly discriminatory.
In certain first-instance decisions following CHEZ, tribunals allowed indirect discrimination claims based on a disadvantage suffered due to the relationship between the claimant and the person with the protected characteristic. We consider that such an approach was outside the scope of CHEZ and will fall outside the scope of the new section 19A.
The tribunals in Groves v William Walker Transport Limited Case No 4100338/20 (19 June 2020, unreported) and Follows v Nationwide Building Society Case No 2201937/2018V (14 March 2021, unreported), incorrectly took this approach. They held that CHEZ covered situations where an employee was disciplined / dismissed for being unable to comply with a PCP due to caring responsibilities for a disabled person.
However, in similar circumstances in the cases of Rollett v British Airways plc Case No 332541 (20 January 2023, unreported), Ahmed & anor v Bristol City Council & ors Case No 1406711/2020 (18 September 2023, unreported) and Manfield-Smith v WDM Ltd Case No. 1400110/2022 (October 2023, unreported), the tribunals correctly interpreted CHEZ as being confined to cases where the claimant suffers the same disadvantage as the group discriminated against – that is - the “collateral damage” type case.
Discrimination “by ricochet” is more helpful language
The Advocate General uses the phrase - “discrimination par ricochet” - in the Opinion (para 55). We have always thought that this was a better term than “discrimination by association”. This idea is developed in para 58 where it is explained that CHEZ claims are not limited to where there is a personal relationship between primary and secondary victim but where the collective nature of a measure creates “collateral damage” (a direct quote) for people who do not possess the protected characteristic.
In our view, this language is more helpful because it makes plain that a relationship is not a necessary ingredient to a claim, although it is likely to exist in many cases. For example, a mother (who is not disabled) and her disabled child are banned from a museum because the child has difficulty moderating his voice. The mother has a claim (subject to the objective justification defence) because she experiences the same disadvantage (being banned) arising from the same PCP (a requirement of silence/low noise). Her relationship to the child is the context for that disadvantage but it is not a necessary ingredient – all that matters is that she experiences the same disadvantage as the child and in the same way.
The fact that a relationship between primary and second victim is not a necessary ingredient of the claim is made plainer by the next example.
Imagine a male primary carer who cannot bring an indirect sex discrimination claim arising from inflexible working practices because generally it is women/mothers who experience the disadvantage. Under CHEZ, he could bring an association claim by pointing to the impact of the PCP on women of the working practice. The male primary carer does not need to know or have any type of relationship with the women who also work in his place of employment – all that matters is that the PCP (you must start work at 8am, for example) creates the same disadvantage for mostly mothers and him. The man would be in an indistinguishable position to the mothers since he is also the primary care giver and this is enough to create the potential for a claim.
New section 19A(1) EA 2010
The new section mirrors our interpretation of CHEZ. It reads simply as follows
19A. Indirect discrimination: same disadvantage
(1) A person (A) discriminates against another (B) if—
(a) A applies to B a provision, criterion or practice,
(b) A also applies, or would apply, the provision, criterion or practice to—
(i) persons who share a relevant protected characteristic, and
(ii) persons who do not share that relevant protected characteristic,
(c) B does not share that relevant protected characteristic,
(d) the provision, criterion or practice puts, or would put, persons with the relevant protected characteristic at a particular disadvantage when compared with persons who do not share the relevant protected characteristic,
(e) the provision, criterion or practice puts, or would put, B at substantively the same disadvantage as persons who do share the relevant protected characteristic, and
(f) A cannot show that the provision, criterion or practice is a proportionate means of achieving a legitimate aim.
(Emphasis added)
The language in new section 19A(1)(e) which we have highlighted makes the point that the relevant “association” in an indirect discrimination claim relates to the disadvantage only; it has no necessary connection with the relationship (association) between the people at the heart of the claims, for example, being “friends” or “family”.
Whilst there is no additional detail yet as to what is meant by “substantively the same disadvantage” following CHEZ, it must refer to a situation in which the disadvantage suffered by the primary and secondary victims are essentially indistinguishable.
New section 19A is a welcome development. It should hopefully clarity going forward when indirect discrimination by association claims arise and emphasise the broad nature of the right (which is not dependent on any type of relationship).
Other forms of discrimination by association
It should be noted that in CHEZ, the Court held that the decision to place the electricity meters out of reach in a Roma community could be direct discrimination “if that measure proves to have been introduced and/or maintained for reasons relating to the ethnic origin common to most of the inhabitants of the district concerned” (para 91). However, at paragraph 105 it stated “assuming that the referring court comes to the conclusion that it is not established that the practice at issue amounts to direct discrimination on the grounds of ethnic origin, it must be stated that the facts as found by that court permit the view to be taken that such a practice displays the characteristics required to constitute indirect discrimination.” Accordingly, CHEZ covers cases where the disadvantage suffered by the secondary victim arises from either direct or indirect discrimination of another person.
Section 19A only covers indirect discrimination by association. Of course, direct discrimination by association is already catered for under s.13 Equality Act 2010.
Direct discrimination by association claims do not rest on the “association” / relationship between the person with the protected characteristic and the claimant either. They can arise whenever the claimant is treated less favourably because of the protected characteristic, not because of their relationship / association with the person who has that characteristic. However, direct discrimination by association differs from its indirect counterpart in that the claimant need not suffer the same disadvantage as anyone else. Further, there is of course no scope for objective justification of direct discrimination by association.
Finally, it should be recalled that discrimination by association does not extend to the duty to make reasonable adjustments, or to claims for discrimination arising from disability (Hainsworth v Ministry of Defence [2013] EqLR 1159, EAT).
16 November 2023