Indirect discrimination by association – the problems with CHEZ

January 26, 2016

CHEZ is a case about the height of Bulgarian electricity meters.  So far, so innocuous.  In holding the Race Directive protects against indirect discrimination by association, it may also be the most important discrimination case of 2015.

The facts

Anelia Nikolova owns a food shop in Dupnitsa, a Bulgarian town with a predominantly Roma population.  She does not identify herself as Roma.  Her electricity is supplied by CHEZ.

In areas of illegal electricity abstraction, CHEZ fixed its meters 6m above ground, rather than the usual 1.7m.  This rendered them inaccessible for personal monitoring of electricity usage.  This repositioning took place only in areas of Roma predominance, but was applied to all customers irrespective of ethnic origin.

Ms Nikolova complained to the Bulgarian Commission for Protection against Discrimination, who considered whether CHEZ’s actions constituted direct or indirect discrimination.  At the time of reference to the CJEU, whether CHEZ’s policy was explicitly to reposition meters in Roma areas (potentially direct discrimination) or to reposition in areas of relevant criminal activity, happening to correspond to Roma areas (potentially indirect discrimination), had not been determined by the national court.

10 questions were referred to the CJEU but the key point of interest is whether EU law protects against indirect discrimination by association.

Advocate General’s opinion

Advocate General Kokott considered this explosive issue to be one it was ‘necessary briefly to consider’.  Her conclusion that indirect discrimination by association is protected rests on three points:

  • neither Article 21 of the Charter nor the Race Directive definition of direct discrimination (save in German, Italian and Croatian) uses the possessive pronoun;
  • the fact the CJEU had only previously considered direct discrimination by association (in Coleman) does not rule out its existence in the case of indirect discrimination;
  • no structural features of the definition of indirect discrimination under the Race Directive militate against it including discrimination by association.

The AG relied on a sex discrimination example to support her conclusion.  The example concerns a company nursery.  Had it been company policy that only children of male employees were entitled to attend, that would amount to direct discrimination by association against the children.  If however, the policy was that only children of full-time employees were allowed to attend, then where that is shown to particularly disadvantage women (due to the greater percentage working part-time), there would be indirect discrimination by association.

The AG’s argument is problematic.

First, the lack of possessive pronoun under Article 21 of the Charter and in most versions of Article 2.2(a) of the Race Directive, which defines direct discrimination, does not positively assist with the construction of the term defining indirect discrimination.

Secondly, in asserting no material structural features of the definition of indirect discrimination militate against indirect discrimination by association, the AG closed her eyes to obvious features.  Whilst the definition of direct discrimination in most languages contains no possessive pronoun, by contrast the focus of the indirect discrimination definition concentrates on the disadvantage to persons of a particular racial or ethnic origin.

Alongside the structural features inherent in the wording itself is the purpose behind the protective principle.  In Coleman, AG Poiares Maduro distinguished between the exclusionary mechanism of protection against direct discrimination (ie excluding from the reasoning of an employer, service provider etc reliance on certain grounds as being acceptable reasons for an action), and the inclusionary mechanism of protection against indirect discrimination (by obliging employers etc to take into account the needs of individuals with protected characteristics).  Moreover, he relied heavily on the importance of human dignity to justify reading the Framework Directive’s direct discrimination provision to include discrimination by association.  He noted one’s dignity and autonomy could be undermined not only by targeting the individual but also, more subtly, by targeting those closely associated with the individual.  That argument cannot be made in support of indirect discrimination by association.  As Lady Hale explained in JFS, direct discrimination seeks formal equality of treatment whereas indirect discrimination looks beyond formal equality to a more substantive equality of results – an equality whose value concentrates on ensuring disadvantage is not suffered by the group sharing the protected characteristic.

Additional criticism can be made of the example AG Kokott relies upon.  Under the example, discrimination by association is superfluous to achieving the Directive’s substantive objective of combating discrimination. The female employee can bring a claim on her own behalf to achieve the objective without any need for her child to claim discrimination by association.

There is one further point to note about the AG’s opinion.  In identifying those who may suffer discrimination by association, she advanced two alternative relationships to the person with the protected characteristic (albeit without suggesting they were exhaustive).  First, those in a close personal relationship with the person possessing the protected characteristic, of which Coleman is an example.  Secondly, where the wholesale and collective character of a measure means those not possessing the protected characteristic are affected by way of a kind of collateral damage.

Judgment of the court

The CJEU followed AG Kokott in finding the Race Directive covered indirect discrimination by association.  It did so without defining the necessary proximity of relationship between a complainant and the disadvantaged group.

The Court echoed the AG’s reliance on the general lack of possessive pronoun in the definition of direct discrimination as justifying consideration of the wider context in which the indirect discrimination provision is placed as an aid to construction. Reliance was placed on Article 19 of the TFEU, Article 21 of the Charter, and recital (16) and Articles 1 and 3.1 of the Race Directive.

The CJEU’s judgment provides a questionable basis of justification for its preferred construction.  Neither the Articles nor the recital compel the broad construction for which they are prayed in aid.  Article 19 TFEU sets out a general objective of combating discrimination, as does Article 1 of the Race Directive within its more restricted remit.  Article 3.1 expresses that the Directive applies to ‘all persons’ in a variety of relational situations, but that cannot sensibly be read as assisting either way on whether indirect discrimination by association is covered.  Most likely it merely seeks to emphasise that no race or ethnic origin is excluded from protection under the Directive.  Likewise recital (16)’s emphasis on the importance of protecting ‘all natural persons against discrimination on grounds of racial or ethnic origin’.  Finally, Article 21 of the Charter provides that ‘Any discrimination based on any ground…shall be prohibited’.  However, those generalised words say nothing about whether person A can piggyback a claim for suffering the collateral damage of a neutrally applied PCP that gives particular disadvantage to persons in group B with whom A does not share a protected characteristic.

Not only do the provisions relied upon for context provide no real support for the CJEU’s assertion, the court fails entirely to address Article 2.2(b)’s focus on those who, due to their racial or ethnic origin, are put to a particular disadvantage by an apparently neutral PCP when compared to others.

Moroever, in Coleman the CJEU was understandably concerned that if the Framework Directive’s direct discrimination provisions did not cover discrimination by association, it was ‘liable to deprive that Directive of an important element of its effectiveness and to reduce the protection which it is intended to guarantee’.  One can illustrate this concern by way of example.  Person A, a non-Muslim, is married to B, a Muslim.  A’s employer, E, holds Islamophobic attitudes and determines to treat A badly as a result of his marriage to B.  But for the Framework Directive covering direct discrimination by association, no discrimination claim could be brought against E, thereby undermining the Directive’s objective of combating discrimination.  That is not so with indirect discrimination, especially in the collateral damage type of case.  Ms Nikolova’s Roma neighbours have standing to bring claims of direct and indirect discrimination and to ensure by doing so that the effectiveness of the Race Directive is not undermined.

Consequences of the judgment

The CJEU’s judgment may be surprising but it is of course binding and practitioners need to deal with its implications.  So, how will domestic courts and tribunals interpret the right to bring a claim for indirect discrimination by association, and does the judgment have any knock-on effects?

The first problem to wrestle with is the extent of the right.  The CJEU is silent on proximity of relationship between the complainant and the disadvantaged group.  Does this mean merely sharing the disadvantage is now enough?  An example will assist, extrapolated from a case I appeared in earlier this year.  Company C, open 7 days per week, has a policy requiring employees to work 5 days per week, including 2 Saturdays per month.  F, a religious Jew who keeps the rules of Shabbat, including prohibition on working, suffers the particular disadvantage of being required to work when her religious beliefs prohibit her from doing so.  Clearly the policy is prima facie indirectly discriminatory against her.   But what of F’s four colleagues, G, H, J and K?  G is not Jewish but has a Jewish stepdaughter and does not want to work on Saturday to set an example to her.  H is Jewish but is not a practising Jew, though his wife is; he wants to be home on Saturdays to look after their baby and enable his wife to attend synagogue.   J is not Jewish, but is an Arsenal season ticketholder who does not want to work Saturdays so he can attend matches.  K is not Jewish, and does not want to work on Saturdays so she can spend quality time with her family.  Are they all now protected?  What about if F left Company C and there are now no practising Jews there?  Would that have an impact on the merits of any claim by G, H, J or K?  CHEZ provides no guidance that helps to answer these questions.  Future references to the CJEU are inevitable.

The extension of indirect discrimination’s remit in CHEZ may have another unintended consequence.  Far from guaranteeing the effectiveness of the protection intended by the Race Directive and the other anti-discrimination directives, the CJEU judgment arguably undermines that protection in light of its potential impact on the objective justification defence.  In Mba, the case about a Christian care worker who believed Sunday to be a day of worship and not of work, Elias and Vos LJJ noted the paradox whereby the more widely held the belief the more likely it would be proportionate to insist on Sunday working.  As seen by the above example, the impact of CHEZ may well be that there is no requirement (in a case where the protected characteristic is religion or belief) to hold the belief in order to claim the protection.  F’s employer could argue that insisting on Saturday working is appropriate and reasonably necessary to achieve the legitimate business aim of adequate staffing because otherwise not only would they be obliged not to require F to work, but also those others who do not wish to work on Saturdays but who have no religious imperative for that wish.  Hence far from reinforcing the effectiveness of the protection against indirect discrimination, CHEZ arguably dilutes and diminishes that protection by losing focus as to its actual purpose.

Key:

CHEZ  – CHEZ Razpredelenie Bulgaria AD v. Komisia za zashtita ot diskriminatsia (Case C-83/14); unreported 12 March 2015 (Opinion of Advocate General Kokott), 16 July 2015 (CJEU)

Race Directive – Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin

Charter – Charter of Fundamental Rights of the European Union

Coleman – Coleman v Attridge Law and another (Case C-303/06) [2008] IRLR 722 (Opinion of Advocate General Poiares Maduro and judgment of CJEU)

Framework Directive – Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation

JFS  – R (E) v. Governing Body of Jewish Free School [2010] 2 AC 728 (SC)

TFEU  –  Consolidated Version of the Treaty on the Functioning of the European Union

Mba – Mba v. Mayor and Burgesses of the London Borough of Merton [2014] IRLR 145 (CA)

Barristers