The ECJ has issued a ruling that extends the scope of discrimination law in relation to indirect discrimination claims.
Ms Nikolova runs a shop in a district of Bulgaria predominantly populated by Roma. Ms Nikolova is not Roma herself. Chez Razpredelenie Bulgaria (CRB) is the electricity supplier to the district, and has fixed electricity meters approximately six metres up the electricity poles. In other areas, the meters are fixed to the poles at a much lower height of around 1.7 metres. CRB explained that the reason for the difference was that there had been a large number of cases of tampering with electricity meters and the "frequent occurrence of unlawful connections to the electricity network in those districts".
Ms Nikolova complained that the height of her meter prevented her from reading it and assessing how much electricity she was using. She argued that her electricity bills were excessive compared to her actual consumption and suspected an excessively high consumption value had been applied to compensate for losses elsewhere in the district.
Ms Nikolova presented a complaint to the Bulgarian Commission for Protection against Discrimination (“KZD”) alleging that she had been discriminated against on grounds of her "nationality". KZD decided that due to the location of her business, she had been treated less favourably by CRB than other customers whose electricity meters had been installed at a location accessible for visual checks. KZD also took the view that the claim was not really about Ms Nikolova's nationality, but rather her "ethnicity" because she could consider herself a member of the Roma ethnic group on the basis that she "identified" herself with the Roma in her district.
CRB lodged an appeal against that decision with the national court, who referred some questions to the ECJ. The first question asked whether the person complaining of indirect discrimination must possess the protected characteristic. The ECJ has answered that they do not have to possess the protected characteristic. The ECJ has interpreted the Directive as requiring the individual to identify a group disadvantage. If a person not possessing the relevant characteristic is "suffering alongside" the protected group as a result of the provision, criterion or practice causing the disadvantage then they may bring a claim for indirect discrimination.
In light of this ruling the UK courts will need to dis-apply any wording in UK law that conflicts with this interpretation of the European Directive and where necessary “read in” words to make legislation compatible with EU law. This potentially broadens the scope of the protection of discrimination law significantly because people who cannot establish they belong to a disadvantaged group may assert that they are suffering alongside those who are part of the group. We will report on any further developments in light of this decision. Employers should be aware of employees seeking to reposition potential claims in order to claim the benefit of extended protection. This may have some unexpected results.