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Indirect Discrimination

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Indirect Discrimination

If you are a discrimination lawyer, you will have heard of the case of CHEZ Razpredelenie Bulgaria D v Komisia za zashtita ot diskriminatsia. If you are not, you probably won’t. It’s a case about the positioning of electricity meters, which might not seem relevant to those of you running businesses not concerned with electricity meters. But this case may well have far-reaching consequences for indirect discrimination law.

What Is It And Should I Worry?

Indirect discrimination occurs when there is a seemingly neutral rule applied to everyone, but that rule disproportionately affects certain groups of people. For example the requirement that you have to be at least 5’9” to do a job disproportionately excludes women. It doesn’t matter that there are men under 5’9” and women over that height – statistically there will be more women excluded than men. Unlike direct discrimination (where you overtly treat a group of people less favourably), there is a defence to indirect discrimination. It is permissible where it is a proportionate means of meeting a legitimate end. So in our example, it might be necessary for employees to be that height to reach an important piece of safety equipment. A tribunal would look at the facts, if it would be proportionate to provide a step ladder, for example. Only members of the disadvantaged group could bring a claim, so I, as a 5’2” woman could, but a 5’5” man would not be able to. Until now.

The Case Of Chez

It is a little known fact that the right to check how much electricity you have used is enshrined in European law. In the case of CHEZ, a business in a predominantly Roma area of Bulgaria complained as their electricity meter was six meters from the ground. Meters were normally 1.7 metres from the ground, but in the Roma-dominated area CHEZ, the electricity company, placed them higher to prevent tampering.

Ms Nikolova, the business owner, was not Roma, but made a complaint. The European Court of Justice allowed her complaint that she was the victim of indirect race discrimination by association. There’s plenty of commentary suggesting the case may have been wrongly decided and the European Court of Justice may not follow it in the future, but for now it’s good law.

How do these very specific facts apply to everyday business life?

There are two potential effects. One is that people not of the affected group can piggyback the group’s disadvantage and bring their own free-standing claim. This means that in my example above, the 5’5” man could bring his own claim, rather than wait to see if I brought mine. This might not make a huge amount of difference to how businesses are run. If there aren’t good reasons for a rule, or if the rule is putting off future employees, then maybe the rule isn’t a useful one to have.

A potentially further reaching application is in relating to disability discrimination. It has long been the case that someone could bring a claim that they are being treated less well because of their association with a disabled person. So, for example, if you refused to employ people with disabled family members you would be breaking the law. What could happen is that people with disabled family members can now bring a claim that something seemingly neutral such as working hours or shift patterns, indirectly discriminates against them because of their association with a disabled person.

Is this a game-changer? For the employees, who might not have previously had a claim it is. But from the employer’s point of view it has already been possible for mothers of children to bring a similar claim (that a certain shift pattern indirectly discriminates against women because they shoulder a greater part of the responsibility for childcare). It remains to be seen whether any radically different claims are brought.

In the meantime employers should:

  • Continue to think about the effects of shift patterns on those with caring responsibilities.
  • Be ready to explain the business reasons behind a shift pattern or way of working.
  • Take seriously any request to change working patterns so an employee can care for someone disabled.

And if you do fit electricity meters, put them where people can see them!