A widening of the discrimination net in Europe

Under EU law (as implemented in each member state) if a person with a “protected characteristic” is directly discriminated against, they may have a claim. Furthermore, a person who is “associated” with another who has a protected characteristic can also bring a claim for direct discrimination if they suffer a disadvantage because of that association (e.g. an employee who has caring responsibilities for a parent suffering from multiple sclerosis and who is not promoted because of those responsibilities) – “associative direct discrimination” is recognised under European law.

If a person with a “protected characteristic” suffers “indirect” discrimination (where the discriminating activity or policy is not directed at any particular group but as a result of it a member of a protected group is disadvantaged), they may have a claim.

The protected characteristics are age, disability, gender reassignment, marriage or civil partnership, race, religion or belief, sex and sexual orientation.

Until recently, in respect of indirect discrimination, in order to bring a claim, the claimant must have shared the protected characteristic with those that suffered from the discrimination; the concept of “associative indirect discrimination” was not recognised.

Now, after a recent case in the Court of Justice of the European Communities (CJEC), CHEZ Razpredelenie Bulgaria AD v Nikolova and others C-83/14, it is no longer necessary to have the protected characteristic to make a claim in relation to indirect discrimination. If you have suffered harm as a result of a discriminatory practice, policy or rule, you may get redress even though you do not share the protected characteristic of the group discriminated against.

In the CHEZ case a Bulgarian electricity supplier implemented discriminatory metering policies specifically in relation to the Roma community. These metering policies were applied to the claimant, even though she was not a Roma herself, because she lived in a Roma district. As a consequence of the metering policies the claimant had to pay higher electricity charges.

The CJEC has held that the fact that she was not a Roma was no barrier to her claim for indirect discrimination.

While this case did not relate to employment law, the findings in relation to the definitions of direct and indirect (race) discrimination will apply to employment situations. Some countries (for instance the UK) may, as a result, have to review their anti-discrimination law to bring it into line with the decision of the court.

It may well give rise to claims by employees for associative indirect discrimination which they have not previously been entitled to bring. Here is a such a scenario:

An employer runs an annual conference for its sales staff. An important part of the conference, which affects your prospects of advancement in the business, is the social side which involves alcohol.
A B C and D are employees in the sales team who do not drink alcohol on religious grounds.
Employee E is also in the sales team and he does not drink alcohol for purely voluntary reasons.

After the CJEC decision, E may now have a claim for (associative) indirect discrimination even though he does not share the protected characteristic of A B C and D (religious belief). He still suffers the same disadvantage as far as his career development is concerned.