Bringing indirect discrimination claims without the protected characteristic of the disadvantaged group

The Employment Appeal Tribunal (“EAT”) has recently held in British Airways plc v Rollett and others and Minister for Women and Equalities (Intervener) [2024] EAT 131 that the Employment Tribunal had not made an error in law in permitting indirect discrimination claims to be brought by claimants who did not share the protected characteristics of the disadvantaged group.

As this is likely a shift from the common understanding of the principles of indirect discrimination and the circumstances in which the claims can be brought, we have prepared this update to break down the implications of section 19A of the Equality Act 2010 (“EqA 2010”) and recent case law.

Indirect discrimination under sections 19 and 19A of the Equality Act 2010

In a claim of indirect discrimination under section 19 of the EqA 2010, a claimant must establish that a provision, criterion or practice implemented by their employer (that is applied equally to employees) places or would place employees with the claimant’s protected characteristic at a particular disadvantage. An employer has a statutory defence to objectively justify this claim if the provision, criterion or practice is a proportionate means of achieving a legitimate aim.

Example A

An example of indirect discrimination could be where an employee on maternity leave puts in a flexible working request to reduce their hours for childcare, but is rejected due to “company policy” that all employees are required to work full time. The employee in this situation may have a claim for indirect sex discrimination. As women are statistically more likely to provide home care for their children, this “company policy” would place women at a particular disadvantage when compared to men.

Strict reading of section 19 of the EqA 2010 would indicate that the employee bringing the claim must share the protected characteristic of the disadvantaged group, however this is not a requirement set out in the EU directives (and was not compliant with the retained EU law created under sections 2 to 4 of the European Union (Withdrawal) Act 2018) in that regard.

This was clarified by a case from the Court of Justice of the European Union on 16 July 2015 (CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia) where it was held that a claimant can establish indirect discrimination even if they do not share the protected characteristic of the disadvantaged group, as long as they can show that they have been disadvantaged in the same way.

The Equality Act 2010 (Amendment) Regulations 2023 have since come into force (on 1 January 2024). Regulation 3 of these Regulations inserted a new section 19A into the EqA 2010 which enables claimants without a relevant protected characteristic to continue to bring claims of indirect discrimination where they can show that they have been disadvantaged in substantively the same way as the disadvantaged group. This ensured that the effect of the CHEZ case would be reflected in domestic law.

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

In this case there were 49 claimants. The claimants were all employed by British Airways plc as Heathrow-based cabin crew.

The claims arose from a restructuring exercise undertaken by British Airways plc in which there were a number of scheduling changes. The claimants had submitted that the scheduling changes placed:

• employees who lived abroad and commuted to Heathrow from abroad at a particular disadvantage compared to those who commuted from the UK. The protected characteristic being race in respect of non-British nationals who argued they were more likely to live abroad; and
• employees with caring responsibilities at a particular disadvantage compared to those who did not have caring responsibilities. The protected characteristic being sex in respect of women who argues they were more likely to hold caring responsibilities.

In addition to the claimants who held the protected characteristics above bringing their claims under section 19 Equality Act 2010, a number of claimants who did not hold the relevant protected characteristic brought indirect discrimination claims as “same disadvantage” claims. Examples of the “same disadvantages” submitted were that the claimants were:

• British nationals but lived in, and commuted from, other countries. Although this claimant did not share the protected characteristic of non-British nationality, they complained of being put to the same disadvantage as non-British nationals commuting to the UK from abroad; and
• A male employee with caring responsibilities. Although he did not share the protected characteristic of being a woman, he complained of being put to the same disadvantage as women with caring responsibilities.

The Employment Tribunal initially indicated (in a decision from 15 December 2022 and which predated the introduction of S19A from 1 January 2024) that they had jurisdiction to hear these claims, and in return British Airways plc appealed against this finding. The EAT dismissed British Airways plc’s appeal citing that the Employment Tribunal did in fact have jurisdiction to consider indirect discrimination claims under section 19 of the EqA 2010 where claimants do not share the protected characteristic of the disadvantaged group but suffer the same particular disadvantage.

The EAT held that section 19 of the EqA 2010 could be read compatibly with CHEZ and that this was entirely consistent with the Act’s purpose of strengthening the law to support progress on equality and ensuring that domestic legislation aligned with the EU definition of indirect discrimination.

The position in UK law has now been further clarified with the introduction of section 19A this year which makes it clear that claimants do not need to share a protected characteristic to suffer the same disadvantage and are protected under the EqA 2010.

Future indirect discrimination claims

This decision by the EAT has clarified how CHEZ and section 19A of the EqA 2010 are to work in the Employment Tribunals. It is clear that they are to have significant implications for discrimination law in the UK.

We will need to monitor the results of the British Airways plc case, as the EAT’s decision was solely a preliminary point and not a finding that there was, in fact, indirect discrimination. Rather, the only finding is that the claimants who do not hold the relevant protected characteristics are eligible to bring their claims (not that their claims hold any merit).

Regardless, this shift in the application of indirect discrimination in the Employment Tribunal opens the door to a new type of claimant that employers may have not previously considered as potential risks. We have set out an updated example below of circumstances that we envisage could extend the ability of individuals to pursue indirect discrimination claims.

Example B

An example could be an extension of Example A where a male employee on paternity leave putting in a request for flexible working to reduce their hours for childcare but is rejected due to “company policy” that all employees are required to work full time. This employee could now bring an indirect discrimination claim for indirect sex discrimination, even though the employee is male rather than female as he is “suffering alongside” the disadvantaged group of female employees.

Guidance

Employers should ensure with any provisions, criterion or practices that they do not only consider the impact on employees or potential employees that hold relevant protected characteristics in their risk assessments, but also consider that employees that do not hold these characteristics will also be able to pursue indirect discrimination claims. Any disadvantages to groups of employees should be considered as a universal risk.