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. It is not clear whether this “indirect discrimination by association” will be important as regards disability discrimination.
EU Court of Justice, 2015, www.bailii.org/eu/cases/EUECJ/2015/C8314.html
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.
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:
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.
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.
In summary, this case opens the possibility that someone may be able to claim for indirect disability discrimination even though they do not have a disability themself. Although the case may well apply to disability in principle, it is unclear whether and if so how it will be important in a disability context.
Firstly, this was a case on provision of goods and services, which is 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 would have to relate to employment or occupation so as to fall within the Framework Employment Directive.
Secondly, it seems likely that this case could in principle 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.
Thirdly, however, 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 for a disability in line with the principles in Article 5 of the directive. It might be argued the result is that the CHEZ decision will not apply to disability where the reasonable adjustment duty applies. However the Court of Appeal in Hainsworth v Ministry of Defence (see Discrimination by association) held that the reasonable adjustment duty only applies where the claimant has the disability. In short the position is unclear, but it may be difficult to rely on CHEZ at least if the disabled people who are put at a disadvantage have a remedy under the reasonable adjustment duty.
Fourthly, the British legislation, s.19 Equality Act 2010 on indirect discrimination, is not consistent with the CHEZ ruling because s.19 says the claimant must share the protected characteristic. Nevertheless it seems likely that in the field of employment and occupation a British tribunal should apply the EU court decision in CHEZ, either by ‘re-interpreting’ s.19 under the Marleasing principle, or through direct effect (for a public sector employer) or “horizontal” direct effect (for a private sector employer): see Framework Employment Directive>Where UK law is inconsistent, what happens?
Fifthly, 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. 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 is not at all clear from CHEZ that the case is limited to where there are different groups treated differently. The courts will need to decide this at some stage. Many of the situations in which indirect discrimination by association might potentially apply – including carers and competence standards discussed below – are where there are not different groups treated differently, if the courts decide the principle extends that far.
To take a couple of specific examples of how the CHEZ decision might perhaps be relevant on disability:
Claim by carers of disabled people?
A House of Lords Select Committee Report (parliament.uk) in 2016 (sub-heading “Carers and indirect discrimination”) raised the question of whether CHEZ might allow an indirect discrimination claim against the employer of someone who cares for a disabled person, perhaps if the employer’s policies did not allow enough flexibility for the carer to meet her/his caring responsibilities. Assuming CHEZ applies to disability discrimination, as is likely, questions would still arise on whether and how the case applies in this situation. For
On claims by carers, another route to investigate might be indirect sex discrimination. It is accepted that women are particularly affected by employment practices that make it more difficult to care for children, and so can potentially claim indirect sex discrimination for this (eg Hardy & Hansons v Lax: Objective justification defence>Objective assessment by tribunal). Even if a carer of a disabled person could not claim the same (though I suspect most carers here too are female), perhaps it could be argued under CHEZ that a carer of a disabled person suffers a similar disadvantage from an inflexible employment policy as that suffered by a parent caring for a child. Whether CHEZ would reach that far has yet to be decided.
Competence standards in exams?
It might be argued that the CHEZ decision will not apply to disability where the reasonable adjustment duty applies (see above). Even if that is right though, what about competence standards in exams set by professional bodies and perhaps universities, which are not subject to the reasonable adjustment duty?
Example: A professional body sets an oral exam. Someone who stammers asks for a longer time, but the professional body refuses saying (a) it does not accept that the effects of the stammer are significant enough to be a disability and (b) in any event the adjustment asked for would be inconsistent with the competence standard it is assessing.
On the basis of the CHEZ case, even if the person could not show his stammer is a disability, can he claim indirect discrimination if he can show the competence standard puts him at a particular disadvantage and the professional body cannot show the standard is justified?
In other words, could a non-disabled person “piggy-back” on the disadvantage that would be suffered by somone with a disability, if the non-disabled person suffers a similar disadvantage?
It is unclear whether or not CHEZ goes this far. However it is an interesting thought which might mean that, like with perceived disability, the claimant does not have to show that they – or anyone – actually has a disability.
I find it difficult to imagine that this particular example would be important in practice though. If the claimant can show the competence standard put him at a particular disadvantage related to his stammer, presumably his stammer is likely to be accepted by the tribunal as disability, particularly since “normal day-to-day activities” in a professional context is interpreted widely: see ‘Disability’: Normal day-to-day activities>EU law: ‘normal day-to-day activity’ is very wide in employment claims.