Indirect discrimination: protected characteristics

Businesses should be made aware of an ECJ judgment that will have huge implications for indirect discrimination law in the UK. The court held that a person may claim indirect discrimination under the Race Directive (2000/43/EC) even though they do not possess the protected characteristic that has given rise to the discriminatory practice in question. If everyone is intended to be the beneficiary of the rule against indirect discrimination, 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.

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, is a good example. 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.