August 24, 2015

Discrimination by association

Can an employee bring a claim of discrimination even though they do not have one of the protected characteristics as set out in the Equality Act 2010?

In a recent case by the European Court of Justice (ECJ), (CHEZ Razpredelenie Bulgaria AD v Komisia za Zashtita ot Diskriminatsia (Case C-83/14) EU: C: 2015:480; [2015] WLR (D) 314) the scope of protection from unlawful discrimination in the UK is likely to widen significantly.

In the UK, it is open to a court to find that a person has either been directly or indirectly discriminated against.

Direct discrimination occurs where because of a protected characteristic (such as race, sex or disability), a person treats another less favourably.

Indirect discrimination occurs where a person/business  applies to the business  an apparently neutral provision, criterion or practice that  apply equally to all, but when look at closely  puts or would put those with a protected characteristic at a particular disadvantage. There will be no discrimination if the provision, criterion or practice is objectively justified.

Discrimination by Association occurs where a person treats another less favourably because of the protected characteristic(s) of a person with whom they are associated.  This treatment is considered to be a form of direct discrimination and is now part of the Equality Act 2010.

The Equality Act 2010, which governs discrimination in the UK, does NOT prohibit indirect discrimination by association.  The person who is placed at a disadvantage by a particular provision, criterion or practice must themselves have a protected characteristic.

The Bulgaria Case

The current case concerned a shop owner in Dupnitsa a district of Bulgaria, which was populated predominantly by people of Roma origin. The Company supplied electricity to the region, but decided to locate the electricity meters at a height of 6 metres, as opposed to the usual 1.7 metres at which the meters were places in other districts. They did this apparently because of the level of meter tampering which had occurred in this particular district.

Ms Nikolova complained that the reason for the increased height was because of the district’s large Roma population.  Even though she is not of Roma origin, she stated that she had been discriminated against because of the area in which she lived and thus her “association” with the local community by the siting of the meters, as she could not read her meter and assess how much electricity she was using which puts her at the same disadvantages of the Roma people.

Whilst this was not an employment case, the local Protection against Discrimination Commission considered the same European Legislation from which our Equality Act derived. The main issue of significance in this case was that Ms Nikolova   was NOT herself of Roma origin. This is important because as stated above, in the UK the shop owner would require to share the protected characteristic before a case such as this could be brought.  Ms Nikolova   won her case at the local Commission but the case was then remitted to the European Court of Justice (ECJ) to consider the specific point of whether protection from indirect discrimination can be afforded in situations of ‘associative discrimination’.

The European Court of Justice (ECJ) Decision

The ECJ decided that on the basis that Ms Nikolova was clearly impacted by the Company’s “offensive and stigmatising” practice, she had in essence suffered collateral damage. The ECJ decided that Ms Nikolova’s case could succeed on the basis that she was closely associated to the protected group, even if she did not share that characteristic.

Possible Implications for UK Discrimination Law

Employment Law in the UK could feel a major impact from this decision. As it stands, Section 19 of the Equality Act 2010 which deals with indirect discrimination, would appear to be incompatible with the European Directive from which it is derived – Section 19 does not cover ‘associative discrimination’. It is therefore likely that the UK Government will need to amend the Equality Act in light of this.

Furthermore, whilst this was a case involving race discrimination, there seems no logical reason why other forms of discrimination (sex, age etc) would not also need to be widened.

Discrimination Law is complex and ever changing, as this case highlights. Please don’t hesitate to contact us for advice and support where needed.

If you need support on this subject you can contact us. You can also take a look at our monthlyEmployment Law Guide.

By Stuart Morley LL.B (Hons), Employment Law Advocate

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