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ECJ ruling widens scope of claims for indirect discrimination

Posted by TonyBrownEmploymentSolicitor on September 4, 2015

Who would have thought that a judgment of the European Court of Justice (ECJ) about the height at which electricity meters were positioned in a town in Bulgaria could have profound implications for indirect discrimination in UK workplaces? 

The case concerned a complaint against an electricity supply company which placed electricity meters at an inaccessible height in part of a Bulgarian town populated mainly by people of Roma ethnic origin. The supplier’s reason in positioning the meters out of reach was to combat high levels of meter tampering and unlawful abstraction of electricity in the area which the company thought was perpetrated by the Roma people.

On the face of it, the supplier’s action constituted discrimination against the Roma people. However, what is important in this case is that the complainant was a woman of non-Roma origin who lived in the district. She brought an indirect race discrimination claim asserting that she suffered the same disadvantage as her Roma neighbours.

Upholding the complaint, the ECJ ruled that the indirect discrimination provisions of the EU Race Discrimination Directive apply irrespective of the racial or ethnic origin of the person suffering the disadvantage. According to the ECJ, anyone who suffers alongside a disadvantaged group without sharing the relevant protected characteristic of that group falls within the scope of the indirect discrimination provisions in the Directive.

Comment

Indirect discrimination is where an apparently neutral practice has an effect that particularly disadvantages people with a protected characteristic (sex, race, age, disability etc.)

Currently, under the Equality Act 2010, an indirect discrimination claim is possible only if the claimant has the same characteristic as the protected group. However, the ECJ’s judgment seems to remove this requirement, so that individuals who suffer alongside a disadvantaged group without sharing the relevant protected characteristic will fall within the scope of indirect discrimination.

As an example of the potential scope of the ECJ’s ruling for UK employers, suppose, an employer requires its staff to work on Saturdays. This would indirectly discriminate against Jewish employees who observe the Sabbath. But according to the ECJ decision a non-Jewish employee who is disgruntled by the requirement for Saturday working could bring a claim based on the discriminatory policy.

Potentially, the ECJ ruling represents a significant extension of the scope of indirect discrimination, making it more important than ever that employers should be able to justify their workplace practices.

If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to tony@bathemploymentlaw.co.uk

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