Expanding discrimination: Employers beware

Expanding discrimination: Employers beware

 Expanding discrimination: Employers beware 

The European Court has handed down a judgment that is going to have a major impact on the concept of indirect discrimination in the UK, and reminds us all how small the world has become.

To summarise, indirect discrimination is the concept of an employer applying a criteria to all equally, but the criteria has a bigger impact on a protected group. For example, the need to be able to run the 100 metres in 13 seconds would apply equally to all, but disadvantage those with a disability perhaps. This would be indirect discrimination if the employer could not justify the criteria.

To bring a successful claim, the employee concerned has historically needed to show that they belonged to that group, or shared that characteristic.

This latest judgment removes the need for an employee to share that characteristic. Therefore, using the example above, it is now possible for an employee who does not have a disability (for example) to bring a claim for indirect discrimination if they themselves could not run the 100 metres in 13 seconds.

The best advice at this stage is that it is too early to review equal opportunities policies until we have seen how the English courts interpret this. However, managers and HR practitioners would be wise to think about any possible discriminatory elements to grievances even if the person complaining does not appear to have a protected characteristic.

Summary of the case facts:

The case is called Chez Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia (2015). It was brought by a lady in Bulgaria when the power company moved electricity meters out of reach to stop Roma people (gypsies) from connecting and stealing power. (Presumably Romas don’t have ladders in Hungary.) This was only done in Roma areas and so was a form of discrimination against Romas on the ground of their race. The complainant was not Roma, but lived in the area and said that she was disadvantaged because she could no longer read her meter. This fascinating, if remote Eastern European drama can be read in full detail at the following link: http://www.bailii.org/cgi-bin/markup.cgi?doc=/eu/cases/EUECJ/2015/C8314.html

Who could ever have predicted that racial stereotypes of power stealing gypsies in Hungary, would affect what British employers were doing?

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