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European Court Ruling Conflicts with UK Equality Act

July 2015

By Diarmuid Deeney, Employment Law Specialist

I have travelled round the country talking on the effect of the famous case of Coleman –v- Atteridge Law and the concept of associative discrimination and advised that it was only applicable to claims of direct discrimination, by virtue of Section 19 of the UK’s Equality Act 2010. This position has now been quashed by the European Court of Justice.

In a judgment delivered last week in a Bulgarian case the ECJ considered claims of associative discrimination by a Bulgarian shopkeeper.

Ms Nikolova ran a shop in a district of Bulgaria which was predominantly populated by Roma.  The local electricity supplier in this district fixed the electricity meters on special electricity poles at a height of 6 metres from the ground.  In the rest of its areas of operation, which were not predominantly populated by Roma, the height was only 1.7 metres above the ground.

Ms Nikolova claimed that she suffered a clear detriment as the meter was awkward to read and also that there was a stigma attached that she could not be trusted.  Interestingly, Ms Nikolova, herself, was not a Roma but she still claimed associative discrimination and that discrimination was indirect as it applied to her a provision criterion or practice (“PCP”) which quite clearly put her at a disadvantage.

The directive the ECJ considered was 2000/43 – the European Community Race Directive and they held that the protection afforded by its indirect discrimination provisions apply irrespective of the ethnic origin of the person suffering the disadvantage.  The measure was clearly a decision based on ethnic origin and it was enough that the Complainant suffered alongside those of the ethnic origin suffering the disadvantage.

Section 19 of the Equality Act makes it clear that indirect discrimination can only occur where the person possessing the relevant characteristic is subject to discriminatory PCP.  This is much narrower than the Directive.  Some commentators suggest that this blurs the lines between the concepts of direct and indirect discrimination around which a lot of our UK employment law is based.  It also could potentially lead to an increase in indirect discrimination claims if you effectively say you are suffering alongside a disadvantaged group.

In any event as this is a decision from the ECJ, on an important race Directive then UK Courts would have to follow their interpretation and disapply Section 19 of the UK Equality Act.

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