Indirect discrimination by association
The Equality Act 2010 defines various different types of behaviour against particular protected categories of worker that will amount to discrimination if it takes place at work.
Two main types of discrimination are (i) direct discrimination and (ii) indirect discrimination.
Direct discrimination occurs where occurs where, because of a protected characteristic (such as race, sex or disability), a person (A) treats another (B) less favourably than A treats or would treat others. It is well known that direct discrimination can occur by association, i.e. person A would commit an act of discrimination if it treated B less favourably because of a protected characteristic of someone with whom B is associated. An example given in the Equality and Human Rights Commission Code of Practice is as follows:
A lone father caring for a disabled son has to take time off work whenever his son is sick or has medical appointments. The employer appears to resent the fact that the worker needs to care for his son and eventually dismisses him. The dismissal may amount to direct disability discrimination against the worker by association with his son.
Indirect discrimination occurs where A applies to B an apparently neutral provision, criterion or practice that A would apply equally to others, but which puts or would put those who share B's protected characteristic at a particular disadvantage. There will be no discrimination if the provision, criterion or practice is objectively justified. An example given in the ECHR Code is as follows:
A factory owner announces that staff cannot wear their hair in dreadlocks, even if the locks are tied back. The decision to introduce the policy could be indirectly discriminatory because of religion or belief, as it puts the employer’s Rastafarian workers at a particular disadvantage. The employer must show that the provision, criterion or practice can be objectively justified.
The Equality Act 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. It will not be unlawful if a person is disadvantaged by a provision, criterion or practice as a result of their association with a person with a protected characteristic.
In CHEZ Razpredelenie Bulgaria AD v Komisia za Zashtita ot Diskriminatsia, the ECJ has held that an individual may claim indirect discrimination on the basis of association with a group that is disadvantaged by a provision, criterion or practice, even if he or she is not of the same ethnic or racial group. The facts of the case were not within the employment context, but it considered the same definitions of direct and indirect discrimination.
CRB supplied electricity to a district of Bulgaria with high proportion of people of Roma ethnic origin in the population. Whilst electricity meters were usually fixed at a height of 1.7m to allow users to check them, in the Roma district, CRB fixed meters at a height of between six and seven metres. The reason given for the difference was in the Roma district, there was a high incidence of meter tampering and unlawfully connecting to the electricity network. N, ran a grocers shop in the district. She alleged she had been discriminated against by the placing of the meters as she was unable to check her consumption and charges were correct. She argued that Roma people were disproportionately affected by the policy and, although she was not Roma herself, she identified with the Roma in the district where her shop was based. The practice of placing meters at a greater height in the Roma district was indirectly discriminatory against Roma people.
The ECJ position was that the EU laws and treaties relating to indirect discrimination were designed to ensure equal treatment by reference to protected characteristics and applied not only to a particular category of protected person but also person who although not themselves the member of the protected group concerned, suffer less favourable treatment on the same grounds. It therefore supported N’s claim.
It now therefore appears that the Equality Act is incompatible with EU law in this regard and therefore we should (i) expect a change to be made to the Act and (ii) expect tribunals to attempt to interpret section 19 of the Act purposively to give effect to the meaning of the corresponding EU requirements, making indirect discrimination by association unlawful.
For further information on the issues raised in this article, please contact Helen Wyatt on 020 7925 8083 or by email at firstname.lastname@example.org.