In CHEZ Razpredelenie Bulgaria AD v Komisia za Zashtita ot Diskriminatsia, the ECJ has held that an individual may claim indirect discrimination under the EU Race Equality Directive (No.2000/43) 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. While it is well established that direct discrimination by association is prohibited by EU law this is the first suggestion from the ECJ that associative indirect discrimination is also covered. Although the case does not involve employment, it considers the same definitions of direct and indirect discrimination as apply in the employment field.
This case has potentially significant implications for UK law. Indirect discrimination under S.19 of the Equality Act 2010 can only be established if the individual has the same relevant protected characteristic (such as race or ethnicity) as the disadvantaged group – i.e. S.19 Equality Act does not provide for ‘associative’ indirect discrimination. If, as appears to be the case, the ECJ has ruled that such discrimination is prohibited by the Race Directive, S.19 Equality Act is prima facie incompatible with the Directive and will have to be amended.
It is difficult to predict whether or not this judgment will cause a surge in the number of cases involving indirect race discrimination, but it will certainly widen the scope of potential discrimination cases once the Government gets round to amending the Equality Act. It may also have a knock-on effect for other types of discrimination as, on the face of it, there is no logical reason why race discrimination should be differentiated from other forms of discrimination.