Indirect Discrimination where the complainant shares the disadvantage but not the protected characteristic

In British Airways plc v Rollett, [2024] EAT 131, the EAT has affirmed a finding of indirect discrimination in circumstances where the Claimant experienced the disadvantage but did not share the protected characteristic of the group principally affected by a change in BA’s working practices.

The EU case of CHEZ Razpredelenie Bulgaria AD v Komisia (ECJ, 16 July 2015) found that a person could be indirectly discriminated against if a PCP resulted in their suffering a disadvantage (even if they didn’t share the protected characteristic of the disadvantaged group). In that case, Ms Komisia had been disadvantaged by the electricity board’s decision to install electricity meters high above the ground to prevent perceived interference from the local Roma community. Although Ms Komisia was not Roma, she also couldn’t reach her electricity meter and therefore suffered the same disadvantage as the local Roma community.

With little fanfare, the government brought in a new section of the Equality Act 2010 on 1st January 2024. Section 19A is an addition to the existing provisions on indirect discrimination that expressly allows associative indirect discrimination (i.e. indirect discrimination can now be made out where a person suffers a disadvantage without sharing the protected characteristic of those most commonly affected).

The British Airways case considers, at appellate level, the principles governing associative indirect discrimination in the UK. In this case, a change in BA’s working practices principally disadvantaged two different groups of employees. The first group consisted of those who commuted from abroad to work (therefore sharing the protected characteristic of race). The second group consisted of those with caring responsibilities (sharing the protected characteristic of sex).

However, there were other claimants (including Rollett) who did not belong to either of the principally affected groups but were equally disadvantaged by the change in BA’s working practices. The EAT upheld the jurisdiction of the Employment Tribunal to consider claims of indirect discrimination from individuals who do not share the same protected characteristic as the disadvantaged group, but suffer the same disadvantage, despite the fact that their cases were commenced in 2021 (and therefore before section 19A was introduced to the Equality Act 2010).

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Authors

Victoria von Wachter

Call 1997

Related areas

Employment

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