EAT Ruling Extends Indirect Discrimination Claims to Claimants Without Particular Protected Characteristics
The Employment Appeal Tribunal (EAT) has ruled that a claimant can pursue an indirect discrimination claim even if they do not share the same protected characteristic as the disadvantaged group, provided they experience the same disadvantage. This decision arose from a case involving British Airways, where new shift patterns were introduced for cabin crew. These changes were argued to have indirectly discriminated against two groups: non-British nationals who commuted to Heathrow from abroad, and women with caring responsibilities. The claimants included individuals who did not have these specific protected characteristics, such as a British national commuting from France and a man with caring responsibilities.
The key issue for the EAT was whether the protections against indirect race and sex discrimination extended to these claimants, who did not share the protected characteristics of the disadvantaged groups. The EAT ruled that they did, noting that while the wording of the Equality Act 2010 did not explicitly cover such claims at the time, it was necessary to interpret the Act in line with the 2015 European Court of Justice (ECJ) case ‘CHEZ Razpredelenie Bulgaria AD.’ In this case, the EU court held that indirect discrimination protections should extend to claimants who experience the same disadvantage as the protected group, even if they do not share the specific characteristic.
The EAT’s decision reinforces the purpose of indirect discrimination law, which is to create a level playing field by removing practices that disadvantage certain groups. Additionally, the Equality Act 2010 was amended, effective 1 January 2024, to explicitly allow for indirect discrimination claims where a claimant suffers “substantially the same disadvantage” as the protected group (section 19A). This legislative change, along with the EAT’s ruling, highlights the importance for employers to consider whether their policies or practices might disadvantage individuals outside of the protected groups as well.
In the specific case, British Airways appealed the tribunal’s decision, arguing that the tribunal had overstepped by interpreting the law in a way that effectively amended it. However, the EAT dismissed this appeal, confirming that the tribunal had correctly applied the law in light of EU principles established in the CHEZ case. This ruling, now codified in UK law, establishes a significant precedent for the interpretation of indirect discrimination claims moving forward.
Rollett v British Airways [2024] EAT 131
Judgment on 15 August 2024
