Indirect discrimination

Summary: EAT confirms tribunal was correct to allow claim for indirect associative discrimination under s19 Equality Act 2010.

In Rollett v British Airways, a group of Claimants brought claims for indirect discrimination. This followed scheduling changes after a restructure by the Respondent. They alleged that the schedule (a PCP) disadvantaged non-British nationals, who were more likely to commute from abroad (indirect race discrimination). It also disadvantaged women, who were more likely to have caring responsibilities (indirect sex discrimination). Amongst the group of Claimants?was a man who was a carer and claimed the ‘same disadvantage’ as the disadvantaged group (women). Another was a British national who lived abroad. She claimed the 'same disadvantage' as the disadvantaged group (non-UK nationals). Neither of these Claimants had the protected characteristic relied upon in the claim.

The tribunal held that s19 Equality Act 2010 (which contains the indirect discrimination provisions) did not allow for associative indirect discrimination on its face. However, it had to be read in line with EU law principles insofar as possible. In the services case of CHEZ Razpredelenie Bulgaria AD v Komisia za zashita ot discriminatsia, the CJEU held that a person could claim indirect discrimination if they lacked a relevant protected characteristic so long as they suffered the same disadvantage as the group with that characteristic. Applying s19 in light of CHEZ, the tribunal upheld the claims.

The Respondent appealed, arguing that the tribunal had fallen on the wrong side of the balance between interpretation (permissible) and amendment (impermissible) when seeking to read s19EqA so as to conform with the principles derived from CHEZ. The EAT, dismissing the appeal, held that the tribunal had made no such error of law.

It is worth noting that the principle in CHEZ has now (from 1st January 2024) been directly enshrined into UK law as s19A Equality Act 2010.