Stephen Miller: EU discrimination laws get a shock

The equality laws we recognise apply across EU member states. Picture: AFP/Getty Images

Direct and indirect discrimination each give rise to their own tricky interpretative issues but they have at least the virtue of being mutually exclusive categories, with well-understood distinguishing features.

If an individual is treated less favourably because of a protected characteristic such as ethnicity, they have been directly discriminated against. In contrast, the law of indirect discrimination deals with requirements which look neutral on their face but in reality work to the comparative disadvantage of people with a particular protected characteristic.

Whilst these distinct types of claim remain at the heart of our rights model, discrimination law is volatile.

We should recognise that the very pace of change can put our norms under strain: add the old saying that hard cases make bad law and little wonder that discrimination law seems to follow such an elliptical pathway.

Read a reported discrimination case in isolation and you will find the outcome usually conforms to accepted notions of fairness; but attempt to divine consistent principles from all the recent cases and you find the law can verge on the incoherent.

In this febrile atmosphere, there are clues that the distinction between direct and indirect discrimination may be more of a dotted than a bright line.

The equality laws we recognise apply across EU member states and so we have to take notice of cases wherever they arise, including Bulgaria, where a dispute arose as a consequence of routine steps taken to reduce instances of electricity theft in that country by raising the electricity meters to a height of six metres above ground.

It was too expensive to do so across the whole country and so CHEZ Razpredelenie Bulgaria, one of the state electricity companies, targeted their fraud-avoidance measures only at geographical areas where theft was highest. Those coincided with high density ethnic Roma populations and so CHEZ invited a claim of indirect discrimination from the Roma group whose opportunity to keep track of their electricity usage was now so severely restricted.

A certain Ms Nikolova ran a grocery business in one such district – Gizdova mahala – and in due course did raise such a claim. She was not a member of the ethnic Roma group, being Bulgarian by nationality and ethnicity, but described herself as “identifying” with the Roma.

As we interpret the law in the UK, she would have fallen at the first hurdle: as a society we value those who empathise with the plight of minorities, but we don’t permit them to sue as if they belonged to such groups. So, if a local authority was to cut the funding for a refugee drop-in centre, a Scottish worker who loses her job as a consequence would not be able to level a charge of indirect race discrimination, whereas all the service users could.

Ms Nikolova’s right to claim indirect discrimination was recognised by the Bulgarian National Court, a decision subsequently endorsed within the Grand Chamber of the Court of Justice of the European Union.

That decision was influenced by the Court’s Advocate General (Ms Kokott) who examined the various Directives before recommending the claim be accepted. That she did so extensively is apparent from one of her 87 footnotes in which she records that she had personally studied 16 different language versions of the Equal Treatment Directive from Estonian to Portuguese in order to see which deployed a personal pronoun when defining indirect discrimination. If you’re interested, three did and 13 did not.

I pointed out at the start that Europe’s anti-discriminatory measures protect citizens in a variety of situations, most obviously in their employment. The rules apply to all businesses regardless of size. If simple questions such as the extent to which an electricity company can react to theft are going to involve the consideration of multiple language versions of the same Directive, I wonder if our law has become far too complex than need be.

Or, to put it more pithily, has a Bulgarian electricity company by putting its meters out of reach of ordinary people succeeded in doing the same thing to our understanding of discrimination law?

• Stephen Miller is a Partner and employment law specialist with Clyde & Co www.clydeco.com