Reflecting perhaps a quiet summer in domestic UK employment law terms, much energy has been expended in recent weeks by commentators on the possible ramifications for HR of a European Court of Justice Case on Bulgarian electricity meters. In reality, however, there may be rather less to this in practical terms than meets the eye.
By way of background, a Ms Nikolova claimed indirect race discrimination against her local electricity supplier, CHEZ Razpredelenie Bulgaria AD, which we will refer to for obvious reasons as CHEZ. In the area where Ms Nikolova lived, CHEZ fixed its electricity meters some 20 feet off the ground, while elsewhere in the same town they were little more than waist-high. Ms Nikolova’s area had a high proportion of Roma inhabitants, and CHEZ said that this practice was a necessary precaution against high levels of tampering and unlawful connections to its network. Ms Nikolova was not of Roma origin but obviously suffered the same claimed disadvantage, i.e. greater than usual difficulty in checking her meter and establishing her electricity usage.
The extension which this case is said to have made to UK employment law is the ECJ’s acceptance that one can suffer not just direct but also indirect discrimination by association – so if Ms Nikolova has suffered a detriment (reduced access to her meter) through the imposition of a provision, criterion or practice (putting meters 20 feet up in Roma areas) which disproportionately affects people of a particular racial group (Roma), and cannot be justified, then she can claim compensation even if she is not a member of the racial group in question.
But the reality is that such a PCP would already be vulnerable to challenge by the affected Roma population. The ECJ noted disapprovingly that CHEZ had not brought any evidence to it about actual tampering or unauthorised connections (as opposed to the fear of it) or of any analysis of the extent of the problem in the various areas, Roma and not, to which CHEZ supplied electricity. On the facts of this case, therefore, CHEZ was badly exposed anyway. All that this ruling does is increase the number of people it might be exposed to. If the PCP had been properly evidenced by objective analysis of the established facts it could well have been found justified and that would leave Ms Nikolova with no more claim than her Roma neighbours.
The case therefore emphasises the importance to the employer of being able to evidence why it did what it did. In CHEZ for example, the company could have established at least a statistical link between a predominantly Roma local population and increased criminal activity on its infrastructure. It might have been useful to consider the cost of alternative security precautions which didn’t place the meter out of easy reach, and/or how effective a deterrent to the determined tamperer a 20 foot climb really was.
Therefore this case does not make unlawful that which was previously lawful, or unjustifiable that which could previously be explained satisfactorily.
The same is true in relation to other protected characteristics under the Equality Act – if your PCP could affect people of a particular age, gender, faith or orientation such that your employees in those populations might claim to have been discriminated against, then CHEZ suggests that your other employees can do so also. But it does not expand the list of protected characteristics and as before, if the PCP is justifiable, no-one has a claim in the first place.
Whether your PCP is compulsory Sunday working, limits on part-time or home working, the handling of certain grocery products or a minimum level of physical agility, therefore, the position post-CHEZ is the same as it has always been. If you can show a good reason for doing something in a particular way and a reasonable review of the other options, you should have nothing to fear from indirect discrimination claims. CHEZ does not alter that.