We report on a significant and far reaching decision of the European Court of Justice which will significantly extend claims for “indirect discrimination”.
In broad terms, indirect discrimination occurs where a “provision criterion or practice” puts a group of people to a particular disadvantage. In UK law, individuals can bring claims for indirect discrimination only where they share the same protected characteristic as the rest of the group.
In a recent finding, however, which is binding on UK Courts, the European Court of Justice has held that individuals do not need to share the protected characteristic but merely need to “suffer alongside” those that do.
What does this mean and why is it so important? Let us elaborate!
The case in question was brought by Ms Nikolova, a resident of the District of Dupnista in Bulgaria. This particular District is dominated by a Roma population, but Ms Nikolova is not Roma herself. The local electricity board, allegedly in the belief that the Roma were stealing electricity from meters, raised the level of the meters in this particular District from 1.7 metres to 6 metres high. The greater height meant that Ms Nikolova was not able to see how much electricity she was using. Ms Nikolova also accused the electricity board of raising prices to make up for the stolen electricity.
The measures put in place by the electricity board therefore had a disproportionate impact on the Roma population. But could Ms Nikolova, who is not Roma herself, bring a claim?
Under English law as it is currently drafted (s.19 Equality Act 2010) she could not, because she does not share the protected characteristic in question (being Roma).
However, the ECJ has held that she could, simply because she “suffered alongside” those that did. English courts will therefore have to interpret the existing legislation accordingly, meaning they may have to change the law as it currently stands.
This case has enormous potential implications in UK law, as the UK Courts are required to interpret legislation in line with European law. We have reported on a number of occasions that UK Courts, even at a very low level, are not afraid of re-writing legislation so that it does.
It is easy to think of cases where people who would not have been able to bring claims before can now potentially do so.
For instance, a man refused part-time work may argue that he is “suffering alongside” women, who are disproportionately affected by this policy.
Similarly, individuals not suffering from a disability, and disadvantaged by a company’s sickness policy could be able to argue that they are suffering alongside disabled people, who are disadvantaged as a group by the policy.
Indeed, individuals may be able to align themselves with those suffering from any type of indirect discrimination, even though they do not share the protected characteristic.
We await future developments.