The recent judgment of the Grand Chamber of the CJEU in CHEZ Razpredelenie Bulgaria (Judgment) [2015] EUECJ C-83/14 has generated much comment and concern that it has widened considerably the range of EU discrimination law.

The facts

CHEZ RB supplies electricity. Its managers decided to fix the electricity meters at a height of approximately 6 metres in the Gizdova mahala district of the town of Dupnitsa, as opposed to the usual 1.7 metres in other areas: the reason for doing so was that there had been cases of meter tampering and unlawful connections to the electricity network. The residents of Gizdova mahala were predominantly of Roma ethnicity.

Ms Nikolova ran a grocer’s shop in the district. She complained to the Bulgarian Commission for Protection against Discriminations, pointing out that because her own supply unit was 6 metres above ground-level she was unable to read it herself to monitor her electricity use and check it against the alleged usage on her bills – which she thought were incorrect. Further, she argued that Roma people were disadvantaged by CHEZ RB’s practice when compared to others and that, though not of Roma origin herself, she suffered the same disadvantage. The Commission held that she had been subject to indirect discrimination on grounds of ethnicity. CHEZ RB appealed to the Administrative Court of Sofia.

The issue

The Administrative Court of Sofia decided to stay proceedings and refer a series of questions to the Court of Justice for a preliminary ruling: in short, whether, under the terms of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p 22) and of Article 21 of the Charter of Fundamental Rights of the European Union CHEZ RB’s practice did, in fact, constitute discrimination against Ms Nikolova on grounds of ethnicity.

In her Opinion Advocate General Kokott recognised that CHEZ RB’s actions affected both people possessing the protected characteristics at issue and those affected by association with them: therefore, her advice was that Ms Nikolova should succeed in her claim of indirect discrimination even though she herself was not of Roma ethnicity.

The judgment

The Grand Chamber agreed with AG Kokott. The crux of its ruling was as follows:

“The concept of ‘discrimination on the grounds of ethnic origin’, for the purpose of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and, in particular, of Articles 1 and 2(1) thereof, must be interpreted as being intended to apply in circumstances such as those at issue before the referring court — in which, in an urban district mainly lived in by inhabitants of Roma origin, all the electricity meters are placed on pylons forming part of the overhead electricity supply network at a height of between six and seven metres, whereas such meters are placed at a height of less than two metres in the other districts — irrespective of whether that collective measure affects persons who have a certain ethnic origin or those who, without possessing that origin, suffer, together with the former, the less favourable treatment or particular disadvantage resulting from that measure” [129.1: emphasis added].

In short, the fact that Ms Nikolova was not herself of Roma origin did not defeat her claim: she had suffered “collateral damage” as part of CHEZ RB’s discrimination against the Roma population of Gizdova mahala.

Comment

Another case that, at first blush, doesn’t seem to have a whole lot to do with “law & religion”. However, under the law as it currently stands, indirect discrimination under s 19 of the Equality Act 2010 is only established if the individual has the same characteristics as the disadvantaged group: in other words, s 19 does not cover associative indirect discrimination.

It is already being suggested that because the Grand Chamber has ruled in CHEZ RB that this type of discrimination is prohibited by the Race Discrimination Directive it has effectively declared s 19 of the Equality Act 2010 incompatible with EU law. Employment law specialists Sharon Tan and Jenny Barnes, of Mishcon de Reya, suggest that if, for example, a male employee’s request to work reduced hours because of childcare needs were refused, he might have an arguable claim for indirect discrimination. The grounds would be as follows: that the refusal was a provision, criterion or practice (PCP) that put women at a particular disadvantage compared with men because they were more likely than men to have childcare responsibilities  – and that since he could be said to be suffering together with those women, he was suffering unjustified indirect sex discrimination, despite being a man.

How far the ruling in CHEZ RB will penetrate into matters associated with religion remains to be seen. But Rachel Crasnow QC and Siân McKinley have already suggested in their own recent analysis that if, for example, an employer introduced a policy under which all employees had to eat lunch at their desks on Fridays in order to man the telephones, not only would a Muslim employee who wished to attend Friday prayers have an arguable claim for indirect discrimination (because the policy put Muslims at a particular disadvantage compared to non-Muslims) but, as a result of CHEZ RB, a non-Muslim employee who had previously played football on Friday lunchtimes might also have an arguable claim in association with his Muslim colleagues because he, too, was suffering the same disadvantage: that he was no longer able to leave the office at lunchtime on Friday.

In Coleman (Social policy) [2008] EUECJ C-303/06 (aka Coleman v Attridge Law) the Grand Chamber held that a person may bring a claim for direct discrimination if s/he has been treated less favourably as a result of being associated with a protected characteristic such as disability or race, even if s/he does not share that protected characteristic. CHEZ RB seems to have extended that possibility into the area of indirect discrimination.

Tan and Barnes wonder “whether discrimination legislation was really supposed to go this far?” — their implication being that it was not.