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Race Discrimination

CHEZ Razpredelenie Bulgaria AD v Komisiaza zashtita ot diskriminatsia ECJ/C-83/14

A person can be discriminated against even when they don't have the protected characteristic.

The case concerned an electricity supplier which placed electricity metres at an inaccessible height (six metres) in a particular district of a Bulgarian town (the normal height being 1.7 metres). The company’s ostensible purpose was to prevent crime, on account of high levels of meter tampering and unlawful connections to the network in the area. The district in question was populated mainly by people of Roma ethnic origin.

Pausing there, this does at first look appear to be an instance of indirect discrimination – a policy applied in the same way to everybody in the district, so they could not readily check their electricity usage, but which put Roma people at a particular disadvantage. Reading between the lines, however, there appear strong grounds for asserting that the electricity supplier’s action in fact amounted to direct discrimination.

In particular, it appears the company only applied the six-metre policy in this and other “Roma districts”. This was the principal factor in applying the policy and it was clear the company thought it was mainly Roma people who were making unlawful connections. It had failed to adduce evidence of the alleged damage and tampering and had apparently carried out no objective analysis of the extent of the problem in the various districts to which is supplied electricity. Accordingly, there are quite strong indications that the company’s approach was tainted by racial stereotyping, which would normally indicate direct discrimination.

Nonetheless, indirect discrimination is the principal way in which this case has been pursued and provides the main focus of the ECJ’s judgement. The important factor here is that the claimant, Ms Nikolova, was a woman of non-Roma origin who ran a shop in the district. She brought a race discrimination claim asserting that she suffered the same disadvantage as her Roma neighbours.

Earlier this year, the Advocate General (“AG”) of the ECJ gave her advisory opinion that the indirect discrimination provisions of the EU Race Discrimination Directive apply irrespective of the racial or ethnic origin of the person suffering the particular disadvantage. She referred to a previous ECJ ruling (Coleman v Attridge Law [2008] IRLR 722) establishing that “associative discrimination” was prohibited by EU law, which meant in that case that a mother of a disabled child could claim direct discrimination on grounds of her child’s disability. The AG considered that this approach could be extended to indirect discrimination, where a practice has a disparate impact on a protected group but also causes “collateral damage”. Other persons disadvantaged by association with the protected characteristic could potentially claim indirect discrimination.

Perhaps surprisingly, the ECJ has now broadly agreed with the AG’s approach, albeit not using the same terminology. It ruled that the Race Discrimination Directive extends to persons who, although not themselves a member of the racial or ethnic group concerned, nevertheless suffer “less favourable treatment” (i.e. direct discrimination”) or a “particular disadvantage” (i.e. indirect discrimination) on the ground of that race or ethnic origin.

Crucially, the ECJ observed that the wording of the Directive permitted this wide interpretation. It defines indirect discrimination as occurring where an apparently neutral provision, criterion or practice (“PCP”) would put persons of as racial or ethnic origin at a particular disadvantage compared with other persons (unless that PCP is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary). There is nothing in this wording stating that a victim of indirect discrimination must share the race or ethnic origin of the protected group.

While this case was concerned with the Race Discrimination Directive, a very similar definition of indirect discrimination is used in other EU equality directives. Accordingly, it is very likely that the ECJ’s ruling will apply in relation to other protected characteristics.

Going back to whether the facts of this case could give rise to a claim of direct discrimination, the AG’s opinion had poured cold water on this possibility, regarding direct discrimination as not relevant. In contrast, the ECJ ruled that direct discrimination could be established if there was evidence before the national court that the measure was introduced and/or maintained for reasons relating to the ethnic origin of most of the inhabitants of the district. As noted above, this may be a more appropriate basis for the national court to decide this particular case than indirect discrimination.