The scope of protection for employees has widened. In British Airways PLC v Rollet and Others, it was acknowledged that the decision would open “the floodgates” to many more indirect discrimination claims and recent amendments to the Equality Act 2010 (EqA 2010) have now embedded this additional protection in law.

In this case, 49 Heathrow-based British Airways cabin crew brought claims, including claims of indirect discrimination, against their employer following a restructuring exercise during the coronavirus pandemic. Both the Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT) considered the same question: could a claimant, who was not part of the protected group bringing the claim, bring a claim because they suffered the same disadvantage?

Background

Under the EqA 2010, if an employer applies a provision, criterion or practice (PCP) to employees which affects a group who share a legally protected characteristic more negatively than others, it is indirect discrimination. Protected characteristics include age, race and sex. For example, if a job requires full time hours, this could disadvantage employees with childcare responsibilities more than those who do not. As these employees are statistically more likely to be women and sex is a protected characteristic, the women could claim indirect sex discrimination.

In the BA case, the employees claimed they suffered indirect discrimination because of scheduling changes introduced during the restructuring (the PCP). The claimants argued that employees living outside of the UK (mostly non-UK nationals) were put at a considerable disadvantage and therefore suffered indirect race discrimination. The claimants also argued that those with childcare responsibilities (mainly female employees) were disadvantaged and, as a result, suffered indirect sex discrimination.

There were two BA employees who argued that they had claims despite not sharing same the protected characteristics as the protected groups. One claim was brought by a British National, living and commuting from France and another was brought by a male employee with caring responsibilities.

In the ET, both parties agreed that interpretation of the EqA 2010 did not extend to allow claims to be brought by employees not in the protected group. However, the claimants argued that the EqA 2010 should be interpreted in line with the European Court of Justice’s (ECJ) decision in CHEZ v Komisia za zashtita ot diskriminatsia. In CHEZ the ECJ allowed a claim for ‘associative discrimination’, i.e., a claim for indirect discrimination where the claimant did not share the same protected characteristic as the protected group.

The Tribunal had to consider whether it could interpret indirect discrimination to include ‘associative discrimination’.

Decision

The Tribunal ruled that the EqA 2010 could be interpreted in line with CHEZ. The ET Judge explained that UK law should be interpreted in line with EU law “so far as possible”. This decision was upheld by EAT on appeal.

This decision meant that tribunals could allow indirect discrimination claims from disadvantaged employees, despite the employee not forming part of the protected group.  

Important update

Since the original ET hearing, the Retained EU Law (Revocation and Reform) Act 2023 has come into effect. This Act made important changes to EU laws which remained in place following Brexit. One key change was an addition to the EqA 2010 which allows a person to bring a claim for indirect discrimination if they do not share the same protected characteristic but suffer “substantively the same disadvantage” as the protected group.

Lesson for employers

Employers must examine their current and proposed PCPs carefully. High risk areas include PCPs which relate to scheduling, redundancy and flexible working. Employers must consider the impact of all PCPs on both protected groups of employees and other groups who would also be disadvantaged but do not share that protected characteristic. Employers can also undertake consultations with employees, or their employee representatives, to assess the impact of a proposed PCP on different groups of employees.

It is important to note however, that there is an available defence against claims of indirect discrimination. An employer can argue that there are legitimate reasons for the policies being in place. A PCP will not give rise to a successful indirect discrimination claim where it is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

How we can help

For further information, or to discuss the issues raised within this case, please contact us to speak to a member of our Employment Team.