‘Collateral damage’ and indirect discrimination

Associate Professor in Law Dr Erica Howard examines the implications for British justice of the recent Bulgarian discrimination case which centred on the installation of electricity meters at an inaccessible height in area mainly, but not exclusively, populated by Roma.

Can people who suffer ‘collateral damage’ because of the discriminatory treatment of others make a successful claim for direct or indirect discrimination? In a recent case (Case C-83/14, CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia, of 16 July 2015 (CHEZ RB)), the Court of Justice of the European Union (CJEU) has decided that they can and this decision will have repercussions for British anti-discrimination law.

The CHEZ RB case concerned an electricity company in Bulgaria, which put up electricity meters in residential areas. These meters were generally put at a height of about 1.7 metres, but, in neighbourhoods with predominantly Roma inhabitants, the meters were placed at a height of 6 or 7 metres. The reason given by the company was that this was to prevent tampering and unlawful connections to the electricity network.

A shop keeper in one of these Roma neighbourhoods, Ms Nikolova, who was herself not of Roma ethnic origin, complained that she had been discriminated against on the ground of racial or ethnic origin because she suffered the same disadvantage as her Roma neighbours.

Indirect discrimination

Under EU law, both direct and indirect discrimination are prohibited. Direct discrimination occurs where a person is or has been treated less favourably than another person is, has been or would be treated because of racial or ethnic origin. Indirect discrimination takes place when a neutral provision, criterion or practice applies to everyone equally but where this puts some people at a particular disadvantage compared to other people because of racial or ethnic origin. Indirect discrimination is not unlawful if it can be justified and, to be justified, there must be a legitimate aim and the means chosen to achieve that aim must be proportionate and necessary. The same definitions of direct and indirect discrimination apply to the other grounds covered by EU anti-discrimination law: sex, religion or belief, disability, age and sexual orientation.

In March 2015, Advocate General Kokott brought out her advisory opinion in the CHEZ RB case. She followed an earlier case (Coleman v Attridge Law and Steve Law C-303/06) where direct discrimination on the ground of disability had been found where a woman was discriminated against at work because she had taken time off to look after her disabled son. In that case, the CJEU found that EU anti-discrimination law also covered this form of discrimination: discrimination by association with a disabled person. By analogy, this applies to the other grounds of discrimination covered by EU law, because the CJEU will always strive towards uniform application of EU law. Based on Coleman, the Advocate General held that the provisions against indirect discrimination on the ground of racial or ethnic origin applied to those people associated with people with a particular racial or ethnic origin as well. So, the concept of ‘discrimination by association’ applied, according to Kokott, to both direct and indirect discrimination.

‘Collateral damage’

The Advocate General considered that discrimination by association occurred where a measure “is liable, because of its wholesale and collective character, to affect not only the person possessing one of the characteristics mentioned in Article 21 of the Charter of Fundamental Rights and in the anti-discrimination directives, but also — as a kind of ‘collateral damage’ — includes other persons” (para. 58). Thus, Ms Nikolova could claim direct or indirect discrimination by association because she suffered the same disadvantage as her Roma neighbours because of racial and ethnic origin even though she herself was not Roma.

The CJEU came to the same conclusion, although it was expressed in a different way. The CJEU simply held that the concept of discrimination on the grounds of ethnic origin must be interpreted as being intended to apply irrespective of whether that collective measure affects persons who have a certain ethnic origin or those who, without possessing that origin, suffer, together with the former, the less favourable treatment or particular disadvantage resulting from that measure (para. 129, under 1). It will be clear that this includes both direct discrimination (less favourable treatment) and indirect discrimination (particular disadvantage). The CJEU decision means that a person can claim direct or indirect discrimination on one of the discrimination grounds (in British law referred to as a ‘protected characteristic’) covered by EU anti-discrimination law even if they do not themselves possess that protected characteristic.

The CJEU also held that the concept of ‘particular disadvantage’ in the EU measure against racial or ethnic origin discrimination does not refer to serious, obvious or particularly significant cases of inequality, but denotes that it is particularly persons of a given racial or ethnic origin who are at a disadvantage because of the provision, criterion or practice at issue (para. 129, under 4).

British tribunals and courts are under a duty to interpret British law in a way that is consistent with EU law.

This appears to be quite different from a  decision by the Court of Appeal (Home Office (UK Border Agency) v Essop and Others [2015] EWCA Civ 609) just before the CJEU decision, which interpreted the provision against indirect discrimination in Section 19 of the Equality Act 2010 as requiring a much stricter test to be successful in a claim for indirect discrimination. In this case, a number of people working for the Home Office complained about a requirement that, to be eligible for promotion, they had to pass a Core Skills Assessment (CSA). This test was a generic test for all jobs and did not relate to a job’s particular role. The claimants failed the CSA and claimed indirect discrimination because of race (as black or minority ethnic persons) and/or age (as person over 35 years of age). The CSA was, it was claimed, a provision, criterion or practice which disadvantaged them in comparison with white and/or younger Home Office employees. The claimants brought evidence of two reports which showed a statistically significant difference in the pass rate of white employees and of employees under 35 as compared to black or minority ethnic employees and employees over 35.

The claim was rejected by the Employment Tribunal, but this was overturned on appeal to the Employment Appeal Tribunal. The Home Office then appealed to the Court of Appeal, where it was held that it is “necessary in indirect discrimination claims for the claimant to show why the PCP [provision, criterion or practice] has disadvantaged the group and the individual claimant” (para. 57) and that “group disadvantage cannot be proved in the abstract” (para. 59). The appeal by the Home Office was successful and the original claimants lost as they had not shown why black and minority ethnic employees and employees over 35 were disadvantaged and why they themselves were disadvantaged. The Court of Appeal held that there was no indirect discrimination and thus it did not need to examine whether there was any justification.

Implications for Britain

This decision of the Court of Appeal about the interpretation of indirect discrimination under Section 19 of the British Equality Act 2010 does not appear to comply with the CJEU decision in CHEZ RB, which suggests that, for a finding of indirect discrimination, a claimant only needs to show that they suffered a ‘particular disadvantage’ because of a protected characteristic and that this disadvantage is suffered particularly, but not exclusively, by people with that protected characteristic. The test for indirect discrimination given by the Court of Appeal is much stricter than the CJEU test and it is harder for a claimant to be successful in an indirect discrimination claim. The Home Office employees in Essop showed that they, as black or minority ethnic employees and/or as employees over 35, had statistically significantly less chance of passing the CSA and thus of being eligible for promotion. Black and minority ethnic people and people over 35 years of age were thus at a disadvantage because of the provision, criterion or practice (the CSA) at issue. This fulfils the requirement for a finding of indirect discrimination as interpreted by the CJEU.

If the Essop case had been decided after the CHEZ RB case, the Court of Appeal should have found that the claimants had established that the CSA was indirectly discriminatory and it should then have examined whether there was any objective justification for this.  The decision of the Court of Appeal in Essop therefore should not be followed in future cases. The British tribunals and courts are under a duty to interpret British law in a way that is consistent with EU law and they should, after the CJEU decision in CHEZ RB, apply the wider interpretation to the provision against indirect discrimination in Section 19 of the Equality Act 2010. Whether they will do this, remains to be seen and the next British case on indirect discrimination is eagerly awaited.