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Employment Law

Legal guidance - compliance - software

27 JUL 2015

Discrimination by association - can this ever be indirect?

Nick Murrell
 Solicitor, Veale Wasbrough Vizards

 Yes, the European Court of Justice (ECJ) has ruled in a recent case where it was held that an individual may claim indirect discrimination by association under the EC Race Equality Directive.

The case of CHEZ Razpredelenie Bulgaria AD v Komisia za Zashtita ot Diskriminatsi, involved the supply of goods and services, but has relevance to employment cases as it focuses on the concepts of direct and indirect discrimination. Unlike direct discrimination, the definition of indirect discrimination previously appeared to require the individual who is subject to the discrimination to posses a characteristic which places them at a particular disadvantage compared with other persons. This case, however, suggests that associative indirect discrimination may also be possible.

The case involved an energy supplier, CRB, in Bulgaria who fitted electricity meters at a higher height in an area predominantly populated by people of Roma ethnicity than it did in the surrounding areas. This practice was employed to avoid the meters being tampered with. One individual, N, alleged that Roma people were discriminated against by this policy. Although she was not Roma herself, N stated that she identified with the Roma district by virtue of owning a shop there.

The ECJ agreed with an Advocate General's opinion that it would be just to recognise the concept of 'discrimination by association' in connection with indirect discrimination. The ECJ held that although N was not Roma, this characteristic was the basis on which she had suffered less favourable treatment. It stated that the Race Equality Directive applied in this situation regardless of whether CRB's policy affected 'persons who have certain ethnic origin or those who, without possessing the origin, suffer, together with the former the less favourable treatment or particular disadvantage resulting from that measure.'

Best practice

This case has significant implications for indirect discrimination law in the UK as it introduces scope for indirect discrimination by association claims to be brought in the UK.

For employers, this will introduce a significant degree of uncertainty as the pool of possible claimants who may challenge a potentially discriminatory policy or practice is expanded. Careful consideration will need to be given to all practices to identify whether they cause a group disadvantage and if so whether that disadvantage can be objectively justified.
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