The EU court held that a person could claim indirect race discrimination even though she herself did not have that particular racial or ethnic background. An electricity company placed meters in Roma districts (including her district) too high up to read, to prevent tampering etc. She was able to claim for the disadvantage even though she was not Roma. From January 2024 s.19 EqA gives express effect to this decision in Britain.
EU Court of Justice, 2015, www.bailii.org/eu/cases/EUECJ/2015/C8314.html
Facts
A woman ran a grocer’s shop in Bulgaria in a district inhabited mainly by persons of Roma origin. She was not Roma herself.
She complained that in her district her electricity company, CHEZ, installed their electricity meters at a height of six to seven metres, meaning she could not check her meter reading. It was common ground that CHEZ did this only in the ‘Roma districts’ of various Bulgarian towns; elsewhere it generally installed meters less than two metres above the ground.
CHEZ said their practice was justified by the vast number of unlawful connections and cases of damage and meter tampering.
The question was whether she could claim race discrimination, on the basis that this positioning of meters was direct or indirect discrimination against the local Roma ethnic group and she was also adversely affected by it.
Held by the EU Court of Justice: even though she was not herself Roma, she could potentially claim for either direct or indirect discrimination.
ECJ judgment
Could she claim as a non-Roma?
Yes she could, both as regards direct and indirect discrimination.
The court said that the EU Race Equality Directive 2000/43 (eur-lex.europa.eu) cannot be defined restrictively. The principle of equal treatment is intended to benefit also persons who, although not themselves a member of the race or ethnic group concerned, nevertheless suffer less favourable treatment (direct discrimination) or a particular disadvantage (indirect discrimination) based on racial or ethnic origin. The court cited by analogy its disability discrimination decision in Coleman.
Whether there was direct or indirect discrimination was ultimately a decision for the national court:
Direct discrimination
The EU court said the treatment resulting from the electricity company’s practice was unfavourable for the district’s inhabitants (mostly of Roma origin) having regard both to the fact that it was extremely difficult, or even impossible, for them to check their electricity meters for the purpose of monitoring their consumption, and to the practice’s offensive and stigmatising nature.
It would be direct race discrimination under Article 2(2)(a) of Race Equality Directive if the ethnic origin determined the decision to put meters at that height. It would be sufficient that ethnic origin was a factor in CHEZ’s decision.
Under Article 8 (shift of burden of proof), if facts were established from which it might be presumed that there had been direct discrimination, it was for CHEZ to prove that its practice was not in any way founded on the districts being inhabited mainly by Roma, but exclusively on objective factors unrelated to discrimination on grounds of racial or ethnic origin. The EU court left it to the national court to decide but – it might be said – steered the national court towards concluding that there was at least a presumption of direct discrimination which CHEZ needed to rebut.
Indirect discrimination
There is indirect discrimination under Article 2(2)(b) of the Race Equality Directive if, broadly, an apparently neutral provision, criterion or practice puts persons of a racial or ethnic origin at a particular disadvantage, unless it is objectively justified.
The EU court said this could apply if meters were placed higher on the basis that it was a district where numerous instances of tampering with, and damage to, electricity meters, as well as unlawful connections, had been recorded.
As with direct discrimination, the ‘particular disadvantage’ was due, in particular, to the offensive and stigmatising nature of the practice, and to the fact that the practice made it extremely difficult, if not impossible, for consumers to check their electricity meters for the purpose of monitoring consumption.
If the practice of placing meters high up in certain districts was not objectively justified (the EU court gave guidance on considering this), then the grocer would be entitled to claim even though she was not Roma, as discussed above.
My comments
Comment: Amendment of Equality Act from January 2024
Regulations have amended the EqA in the light of this CHEZ decision, for discrimination occurring on or after 1st January 2024: see “Same disadvantage” indirect discrimination (s.19A). Broadly, the new provision, s.19A EqA, allows a claim by someone who does not have the protected characteristic if the person is put at substantively the same disadvantage as people who do have the characteristic. That link gives examples of how CHEZ, and particularly the new s.19A, may be helpful.
Comment: Effect of CHEZ in Britain before 2024
The wording of the EqA requires a claimant under s.19 to themself have the protected characteristic. However, the EAT in British Airways v Rollett & others, 2024, accepted that under CHEZ, s.19 EqA should be re-interpreted to allow claims for indirect discrimination by people who did not have the protected characteristic, but who were put at the same disadvantage.
This re-interpretation was under the Marleasing principle (Framework Employment Directive>Where UK law is inconsistent, what happens?). For disability, it should only apply to employment claims: “Same disadvantage” indirect discrimination (s.19A)>Before 1st January, 2024. From that date, however, s.19A applies also to non-employment claims.
My comments: Other points
This was a case on provision of goods and services, which was covered by the Race Equality Directive 2000/43 but not by the Framework Employment Directive applicable to disability discrimination. As regards disability discrimination, an argument based on this case (before January 2024) would have to relate to employment or occupation so as to fall within the Framework Employment Directive.
It seemed likely that this case could indeed apply to the Framework Employment Directive including disability discrimination (as regards employment or occupation), particularly as the EU court cited the Coleman case on disability to support its decision in this case. The new s.19A EqA (above) implies that the government does indeed see CHEZ as extending to disability, and to employment and other types of claims. The EAT in Rollett did not consider the Framework Directive as such, but its decision suggests the Framework Directive is covered.
The definition of indirect discrimination in the Framework Employment Directive has an exception (at Article 2(2)(b)(ii)) as regards disability if, broadly, the employer or another person to whom the Directive applies is obliged under national legislation to make reasonable adjustments to eliminate disadvantages entailed by the relevant provision, criterion or practice (PCP). It is unclear what effect, if any, this might have if seeking to rely directly on CHEZ in a pre-2024 disability claim. However, from January 2024 the British courts will presumably focus on the wording of s.19A, discussed at “Same disadvantage” indirect discrimination (s.19A)>Argument that reasonable adjustment would have been made?
In the CHEZ case there were actually different groups who were treated differently. The inhabitants of the Roma district in which the claimant lived were treated differently from other districts, through meters being placed higher than elsewhere. The EU Court said indirect discrimination could apply if this difference in treatment was not because of race but because of objective factors such as meter tampering in those districts. However it was not at all clear from CHEZ that the case was limited to where there were different groups treated differently. S.19A goes on the basis that CHEZ is not limited to where there are different groups treated differently.
