Expanding scope of Discrimination Claims: Employers Beware

Businesses should be made aware of an ECJ judgment in the case of CHEZ Razpredelenie Bulgaria C-83/14, 16 July 2015 (Bailii) that will have huge implications for discrimination law in the UK. The court held that a person may claim indirect discrimination even though they do not possess the protected characteristic that has given rise to the discriminatory practice in question. This means that it will become harder for businesses to identify who might bring a claim. People who could not previously establish that they belonged to a disadvantaged group may seek to bring claims if they are “suffering alongside” a disadvantaged group.

Take for instance, a man making a request to work part-time for childcare reasons and being refused, on the basis that there is a requirement to work full-time. He would struggle to establish that he belonged to a disadvantaged group (it being commonly accepted that a requirement to work full-time disadvantages women more than men due to their greater role in childcare). However, this case strongly suggests he could bring his claim as a person suffering alongside the disadvantaged female group.

If everyone is intended to be the beneficiary of the rule against indirect discrimination, it becomes harder for businesses to identify with precision who might bring which is potentially indirectly discriminatory. It also paves the way for claimant lawyers to be creative.

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