Indirect Discrimination and protected characteristics

A recent decision in the European Court of Justice (CHEZ Razpredelenie Bulgaria C-83/14, 16 July 2015) is going to have an important impact on how employers view indirect discrimination as a claim may now be brought by someone who does not actually possess the protected characteristic.

"Protected characteristics" include: sex; age; race; religion/belief; disability; marriage/civil partnership; pregnancy/maternity; gender reassignment; and sexual orientation.

It has been the case for some time with direct discrimination (i.e. where one person is treated less favourably than another on the grounds of a protect characteristic) that you can have discrimination by association. An example would be an employee who is not themselves disabled but is dismissed because of their disabled child.

Protection appears to have been extended by the ECJ to cover indirect discrimination (i.e. where an apparently neutral provision puts persons with protected characteristic at a particular disadvantage) in that people "suffering alongside" a disadvantaged group may suffer even though they do not share the characteristics of the group. An example could be a man requesting to work part-time for childcare reasons who is refused due to a requirement to work full time. Traditionally the requirement to work full time disadvantages women more than men due to their greater role in childcare. A man would have difficulty saying that he falls within the disadvantaged group of women but now he might be on firm ground arguing he suffers alongside them.

The dust is still settling on this case and we will be watching to see how the decision is implemented by the Tribunal.  

For an initial free of charge consultation, please contact one of our Employment Law experts on 0113 201 4900 or employment.law@emsleys.com.

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