The Sunday Telegraph reports concern among Tory MPs that Rishi Sunak is “squandering Brexit Freedoms by approving more EU rules”. The headline refers to new Regulations amending the Equality Act 2010. With its usual calm understatement when dealing with discrimination law the Telegraph says:

New regulations, driven through Parliament without fanfare, “gold-plate” judgments by the European Court of Justice (ECJ) and create a “carte blanche” for companies to be sued for “unlimited damages”, Conservative MPs have warned.

The changes amount to a significant expansion of New Labour’s Equality Act, which Mr Sunak once claimed had “allowed every kind of woke nonsense to permeate public life” and “must stop”.

Now before looking at what the new Regulations actually do can I first of all whinge about the phrase “New Labour’s Equality Act”? There is a distressing tendency among journalists and politicians of both the right and left to talk of discrimination law as if it was invented by Harriet Harman in 2010. In fact the Equality Act 2010 mainly reorganised and consolidated laws that were already in place, with many of the key provisions dating back to the 1970s. There were some new rules of course, but I suspect that most of the people who complain about the pernicious effects of the Act (looking at you Jacob) could not actually tell you what they were. And of course, anyone who refers to the “Equalities Act” loses all right to comment on the issue.

These new Regulations come about as a result of the Retained EU Law (Revocation and Reform) Act 2023 which remove the interpretive effects of EU Law. Previously UK courts, when interpreting domestic law, would accord supremacy to any EU Law that it was designed to implement. As Catherine Barnard pointed out on the platform formerly known as Twitter, the Retained EU Law Act included the power to issue Regulations that restate laws derived from the EU and that is what the new Regulations do. It is a little rich for MPs to quibble about the lack of Parliamentary scrutiny that such Regulations receive when that lack of scrutiny was a key part of the Act that they were so keen to see passed.

What the Regulations do in broad terms is to codify principles of discrimination law that have been settled by the European Court of Justice but which were never actually written into domestic legislation. The provision that draws particular criticism is the new right for ‘anyone’ to claim indirect discrimination. The Telegraph says:

One of the additions to the Equality Act allows people to sue for “indirect discrimination” if they find themselves subject to the “same disadvantage” as, for example, gay people or members of particular religions, even if the claimants themselves are not gay or religious.

This is indeed an interesting change which is now found in Section 19A of the Equality Act.

Indirect Discrimination

Indirect discrimination covers situation where an employer has a practice or a policy (the technical term is a “provision criterion or practice” often referred to as a “PCP”) which it applies equally regardless of any protected characteristic individuals may have but which causes people who share a protracted characteristic a “particular disadvantage”. Think of a job advert specifying that applicants must be at least six foot tall. On average, men are more likely than women to meet that requirement so women are placed at a particular disadvantage by it. There are of course many women who are six foot tall and many men who aren’t – but it is the overall statistical impact that counts. I freely admit that I am assuming this difference for the sake of coming up with a clear example and have not researched it. Please don’t correct me If I’ve got this wrong.

So under S.19 of the Equality Act a woman who is less than six foot tall would be able to claim indirect discrimination as she suffers the same disadvantage as those with which she shares the protected characteristic of sex. The employer could defend the claim by arguing that the height requirement was a “proportionate means of achieving a legitimate aim”. But this is a high bar for an employer to clear and it’s difficult to think of a justification for that sort of requirement – which is perhaps one reason why we never see it in job advertisements (the police dropped minimum height requirements in the early 90s)

The new rule – S.19A – is that someone can claim indirect discrimination even if they do not share the protected characteristic of the disadvantaged group. So in my example a man who is less than six foot tall would be able to claim indirect discrimination even though it is women who are most likely to be disadvantaged. Or to take a real-life example you could think of a test that employees have to pass in order to be promoted. If statistics show that one racial group is disadvantaged by that test – and the employer can’t show that it is a proportionate means of achieving a legitimate aim – then under S,19A anyone who failed the test could claim indirect race discrimination whatever their own particular ethnic background might be.

Bulgarian Electricity Meters

The new section derives from a 2015 decision of the European Court of Justice concerned with the placement of Bulgarian electricity meters. In CHEZ Razpredelenie Bulgaria AD v Komisai Za Zashtita to Diskriminatsia (we tend to just call it the CHEZ case) a grocer complained that her local electricity company placed electricity meters in her district on concrete pylons at a height of six or seven feet. In other districts they were placed at head height and were easier to read. This placed her at a disadvantage because it was harder for her to check her electricity consumption.

She argued that the practice amounted to race discrimination. She claimed that the electricity company only placed meters at a height in areas with larger Roma populations. Lying behind the decision was a prejudiced view that Roma people were more likely to try to interfere with the meters if they were easily accessible. She herself however was not part of the Roma community. The European Court of Justice did not decide the issue but in the guidance it gave to the Bulgarian courts it said:

In that regard, the Court’s case law, already recalled in paragraph 42 of the present judgment, under which the scope of Directive 2000/43 cannot, in the light of its objective and the nature of the rights which it seeks to safeguard, be defined restrictively, is, in this instance, such as to justify the interpretation that the principle of equal treatment to which that Directive refers applies not to a particular category of person but by reference to the grounds mentioned in Article 1 thereof, so that that principle is intended to benefit also persons who, although not themselves a member of the race or ethnic group concerned, nevertheless suffer less favourable treatment or a particular disadvantage on one of those grounds

I was never much of a fan of the prose style of the European Court of Justice.

What this rather heavy paragraph seems to be saying is that what makes an act discriminatory is not the identity of the person claiming discrimination, but the act itself. We are used to this principle in the case of direct discrimination – less favourable treatment “because of a protected characteristic”. If an employer refuses to promote an employee because her husband is Black then that would be direct race discrimination whatever her ethnic identity might be. The less favourable treatment is because of race. It does not need to be because of the individual employee’s race.

But in the paragraph above the Court seemed to be talking about both direct and indirect discrimination. It spoke of people who suffer “less favourable treatment or a particular disadvantage” and the latter phrase is very much something we associate with indirect discrimination. The case itself was brought as a direct discrimination claim but the Court accepted that even if the electricity company was not motivated by race, the placing of electricity meters at a height in areas with a large Roma population was capable of amounting to indirect discrimination. It did not suggest that since the individual bringing the claim was not Roma herself, an indirect discrimination claim would not be open to her.

Applying CHEZ to the Equality Act

There is no authoritative interpretation of just what CHEZ meant and what its impact on the interpretation of the Equality Act should be. You could certainly argue that the Court was not seeking to make any definitive statement about who could claim indirect discrimination. But CHEZ has been considered by some Employment Tribunals as significant. In Follows v Nationwide Building Society the Tribunal found that an employee who made redundant because of her status as a homeworker was indirectly discriminated against because she was caring for a disabled parent. The Tribunal held that Chez meant that indirect discrimination could be claimed by people who were “associated with” those who shared a protected characteristic – disability in this case – even if they did not have that characteristic themselves.

It is probably this case that prompted this paragraph from the Telegraph:

Lawyers believe the laws could, for example, allow workers who care for disabled family members to sue firms for “indirect discrimination” on grounds of disability if they are barred from working from home.

I’m not sure which lawyers believe that, because the reasoning in Follows is clearly wrong. CHEZ has nothing to do with being “associated” with people. The point of the case was that the placing of the meters was potentially unlawful because it was indirectly discriminatory against people who were Roma, not people who were associated with them. If it was unlawful, then there was no reason why the practice should not challenged by anyone was was affected by it irrespective of whether or not they were Roma themselves. The individual’s relationship with people who were Roma was neither here nor there.

The reasoning in Fellows was rejected by a Tribunal in Rollett v British Airways plc. However Employment Judge Anstis did go on to accept that CHEZ meant that indirect discrimination claims could be brought by people who were not part of the group that was subject to the “particular disadvantage”:

Given that, I must read s19 of the Equality Act without the requirement for the claimant to share the protected characteristic of the disadvantaged group. CHEZ-type associative discrimination is unlawful. The tribunal has jurisdiction to consider indirect discrimination claims under section 19 of the Equality Act 2010 where there is a PCP applied by an employer that puts people with a particular protected characteristic at a disadvantage. The claimant in such a case must also suffer that disadvantage but it is not necessary for them to have the same protected characteristic as the disadvantaged group. Of course, it remains the case that the respondent may then justify the PCP as a proportionate means of achieving a legitimate aim.

That seems like sound reasoning to me – but it is only a Tribunal decision. There is no higher authority requiring Tribunals to interpret the Equality Act in line with what the European Court of justice said in CHEZ. With the new S19A, however, there is no need for one. It is now written into the Equality Act that if something an employer does amounts to indirect discrimination then any employee who is disadvantaged by that can bring a claim. So – to give another example – a man refused flexible working options can now claim indirect discrimination provided he can show that the employer’s approach to the issue places (or would place) women at a particular disadvantage.

I am a bit surprised to see the Government carving this new right into the stone of the Equality Act. But ultimately employers should already be avoiding doing things that amount to indirect discrimination – so I don’t think S.19A requires them to do anything new. If the pool of potential claimants has increased somewhat then that should not make the sky fall in. Frankly, if I were a Tory MP there would be other things that I’d be worried about.