14 April 2015

Protected by association? Indirect discrimination rights could be extended

This article was written by Hilary O'Connor (partner), Nicola Kerr (partner), and Anne-Marie Sugrue (associate).

Associative discrimination applies when an individual suffers discrimination because of their association with a person with a protected characteristic. Currently, in the UK, associative discrimination is prohibited only in respect of direct discrimination and harassment. For example, an employee suffering harassment because of, say, the sexual orientation of a family member would be protected under the Equality Act 2010.  

However, as the law stands, indirect discrimination can only apply to a person who themselves has the protected characteristic. To recap, indirect discrimination occurs where an employer applies a “provision, criterion or practice” to its workforce – a “PCP” -  but the PCP has a negative and disproportionate effect on a protected group. The classic example is a PCP requiring all staff to work full time: this may be detrimental to women, a greater proportion of whom have caring responsibilities in the general population making it difficult to work full time, and may hence be indirectly discriminatory on grounds of sex.

This principle of indirect discrimination could now be extended further than just direct discrimination and harassment. An opinion from the Advocate General of the European Court of Justice (“ECJ”)  in the case of Chez Razpredelenie Bulgaria AD suggests that the principle of associative discrimination may extend to indirect discrimination claims. The opinion relates to discrimination in the provision of goods and services, but if the ECJ follows this opinion, it could impact on employment law in the UK, requiring a significant change.

In this case, Ms Nikoleva, who ran a shop in a predominantly Roma region of Bulgaria, brought a claim against her electricity supplier, CRB, which had implemented a PCP in the area of installing electricity meters six meters off the ground on electricity pylons (rather than the usual one to two meters). CRB stated its practice of installing the meters higher up than normal was on the basis that a large number of meters in that area had been tampered with. This meant it was difficult for Ms Nikoleva to read the meters and she also suspected that she was being charged a higher rate for electricity than normal to compensate for electricity being lost as a result of tampering elsewhere in the district. The legal analysis centered around consideration of (1) whether Ms Nikoleva was “associated” with the Roma community, and (2) she could therefore be the victim of indirect discrimination as arguably the practices that had been implemented could put persons of the Roma community (being a protected trait) at a disadvantage – and the Advocate General decided that she was and it could. 

This is only an opinion at this stage, with no binding legal effect. However, if it is followed by the ECJ, the effects of this could be wide-ranging in two important respects:

  • Employers could be liable for indirect discrimination where a protected characteristic applies to someone associated with a staff member, such as a family member. The precise scope of this will only be clear when the ECJ makes its final ruling.  However, returning to the example of an employer who requires full time working, it is possible to see how the legal risks could proliferate if this opinion is followed. The employer could face claims not only from women (on the basis of a traditional indirect discrimination claim) but also from, for example, employees with a disabled child.  If the employer refuses to allow the employee to work part-time to care for their disabled child, and he/she can show disadvantage, this could constitute indirect disability discrimination by association with the child.  This would be a significant extension of discrimination protection.
  • The case takes a very wide view of association. Here, “association” was not with a family member or friend (as in previous case law) rather with the community where Ms Nikoleva lived.   This could greatly broaden the number of employees potentially within scope of the legislation.

Employers could still objectively justify a PCP as a defence to an allegation of indirect discrimination. However, this would be a significant additional hurdle for employers, especially as justification is often something of a grey area.   

If followed, this opinion would represent a significant widening of the scope of discrimination protection. Most importantly for employers, it would introduce real practical difficulties. An employer can, perhaps, be reasonably expected to assess the impact of its policies and practices upon staff in light of any protected characteristics they have. However, making the same assessment in light of the protected characteristics of family or friends of employees, or even their local community, is another matter and seems an unfairly onerous and in many cases impractical task.

We will watch the progress of this case and will report back on any further developments.

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