In CHEZ Razpredelenie Bulgaria v Komisia za zashtita ot diskriminatsia, an electricity company installed meters in one district at a height of between six and seven metres. In the other districts, meters are placed at a height of 1.70 metres. The company argued that the difference in treatment is justified by the increased frequency of tampering with and damage to meters and by numerous unlawful connections to the network in the district concerned. Ms Nikolova, who runs a shop in the district, contended that the installation of the meters in an inaccessible location was due to the fact that most of the inhabitants of the district were of Roma origin. Although Nikolova was not of Roma origin herself, she argued that she too was suffering discrimination because of this practice.
The Bulgarian Equality Commission upheld Nikolova’s claim, the electricity company appealed and the Bulgarian Administrative Court referred a number of questions to the ECJ with the principal issues being: (i) whether the practice amounts to direct and indirect discrimination on the grounds of ethnic origin; and (ii) whether Nikolova could bring a claim even though she is not of Roma origin.
The ECJ held that it was for the Bulgarian Court to decide whether direct or indirect discrimination had taken place based on the following principles applying to the application of the EU Race Directive:
1. Equal treatment applies not only to persons of a certain ethnic origin, but also to those who, although not of the same ethnic group, also suffer less favourable treatment or a particular disadvantage on account of a discriminatory measure. In other words, discrimination by association applies to both direct and indirect discrimination.
2. Given the principle in (1), although Nikolova is not of Roma origin, she considered that 'Roma origin' was the basis on which she had suffered ‘less favourable treatment’ or 'a particular disadvantage'. Therefore both direct and indirect discrimination claims in such circumstances were covered by the Directive.
Although this case concerns the provision of services, it applies to the interpretation of employment law and is a ‘game changer’ for two primary reasons.
Firstly, while it has been accepted that direct discrimination can occur by association, e.g. a non-disabled employee is not promoted because she needs to work flexibly to care for her disabled son, this ruling establishes that associative discrimination also applies to indirect discrimination, where a neutral practice disadvantages people of a specific ethnic group and a person who is not of the same ethnicity suffers the same disadvantage by association with that group. This opens the door for a new type of potential claim, e.g. holidays are banned at a time when Eid al-Fitr occurs, which particularly disadvantages Muslim employees; now it may be possible for a non-Muslim employee who is only able to take holiday in the ‘banned period’ to claim associative indirect discrimination.
Secondly, the ECJ’s decision means that the definition of indirect discrimination in Section 19 of the Equality Act 2010 does not comply, in part, with the Race Directive, as S.19(2)(c) requires the individual complainant to have the same race or ethnicity as the disadvantaged group. But the impact is not just on ‘race’ cases because the Gender Equal Treatment Directive and the Equal Treatment Framework Directive, in respect of religion or belief, sexual orientation, age and disability, are framed in the same way.
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