For claims arising on or after 1 January 2024, this is allowed by the new section 19A Equality Act 2010 (EqA).

Background

Under section 19 EqA, indirect discrimination occurs where the employer operates an apparently neutral provision, criterion or practice (PCP) that places people with a particular protected characteristic at a particular disadvantage as compared to people who do not share that characteristic. The employer will have a defence if they can objectively justify the PCP.

A common example of potential indirect discrimination is a requirement that everyone must work full-time as this is likely to disproportionately affect female workers, who are more likely to have caring responsibilities.

For indirect discrimination to be established, the wording of S.19 EqA requires the claimant to both personally suffer the disadvantage and share the protected characteristic of the group disadvantaged by the PCP (i.e. in above example, to be female). However, the requirement for the claimant to have the protected characteristic of the disadvantaged group is not a requirement set out in the relevant EU Directives.

The European Court of Justice decided in the 2015 case of CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia (Chez) that indirect discrimination could in fact also extend to those who did not share the same protected characteristic as the disadvantaged group. This has been referred to as associative indirect discrimination or "same disadvantage" indirect discrimination.

Before 1 January 2024, our courts were required to interpret British legislation to comply with EU law as long as the interpretation did not go against the grain of the British legislation.

The dispute between the parties in this case was a preliminary point about whether the employment tribunal could legitimately interpret section 19 EqA in accordance with the Chez judgment. The main hearing is set to take place at a later date.

Facts

The claimants were Heathrow-based cabin crew. Their claims arose out of a restructuring exercise which British Airways (BA) undertook as a consequence of the Covid-19 pandemic, which had a dramatic effect on air travel from early 2020 onwards.

The restructure included scheduling changes, which some employees alleged were indirectly discriminatory on the grounds of nationality or sex. In January 2021, several Heathrow-based cabin crew brought employment tribunal claims for indirect discrimination under section 19 EqA against BA. They argued that the scheduling changes put those (predominantly non-British nationals) who lived abroad, and commuted to Heathrow from abroad, at a particular disadvantage compared to those who commuted from within the UK; and/or put those (predominantly women) with caring responsibilities at a particular disadvantage compared with those who did not have caring responsibilities.

However, some claims relied on associative indirect discrimination, i.e. claims by individuals who did not have the relevant protected characteristic. By way of example, the tribunal noted that claims were brought by:

• K, a British national who lived in, and commuted from, France. Although K does not share the protected characteristic of non-British nationality, she complained of being put to the same disadvantage as non-British nationals commuting to the UK from abroad.
• P, a man with caring responsibilities. Although P does not share the protected characteristic of being female, he complained of being put to the same disadvantage as women with caring responsibilities.

In a preliminary hearing, the employment tribunal held that it did have jurisdiction to consider associative indirect discrimination claims under section 19 of the EqA where the claimant suffers the disadvantage but does not have the same protected characteristic as the disadvantaged group.

BA appealed to the EAT. It argued that section 19 EqA was incapable of being read compatibly with EU law, because any compatible interpretation of section 19 would go against the grain of the EqA. In reaching its decision, the tribunal had gone beyond the limits of how far a court can re-interpret a statute.

The EAT did not accept BA's appeal. The EU case law position was compatible with domestic law in that it strengthened the law and allowed the UK to ensure its domestic framework properly aligned with the source EU Directive. 

What this means for employers

For claims arising before 2024, the EAT's decision provides a degree of certainty for employers on the scope of indirect discrimination.

In any event, on 1 January 2024, the EU Chez case law position was enshrined in British law, with the introduction of section 19A EqA. This section of the EqA now provides the statutory basis to allow a claimant to claim indirect associative discrimination where they are put to the same disadvantage as a group of people who share a protected characteristic. Employers need to consider any potential unintended disadvantages that a PCP could have in relation to all employees.

This case and section 19A EqA do not, however, open the door to all indirect associative discrimination claims. The employment tribunal in Rollett made a distinction between "same disadvantage" indirect discrimination in this case, and the type of indirect associative discrimination claim which arose in the case of Follows v Nationwide based on association with a person holding a protected characteristic. (Please see our previous alert here) The employment tribunal in Rollett determined that it did not have jurisdiction to consider the latter type of claim.

British Airways PLC v Rollett and others and Minister for Women and Equalities (Intervener) 2024