The Employment Appeal Tribunal (EAT) has upheld the tribunal's decision in Rollett v British Airways that the claimants were able to bring claims for indirect associative discrimination.
It's worth noting that this case dealt with the law prior to the introduction of section 19A of the Equality Act 2010 (EqA 2010). Section 19A states that a claimant will be subject to indirect discrimination if they can establish that they have been put (or would be put) at the "substantively same disadvantage" as the persons who have the relevant protected characteristic.
The claimants brought claims for indirect discrimination following scheduling changes which were brought about as part of a restructuring exercise. They alleged that the scheduling changes (which constituted a provision, criterion or practice (PCP)) put those (predominantly non-British nationals) who lived abroad and commuted to Heathrow at a particular disadvantage compared to those who commuted from within the UK and those (predominantly women) with caring responsibilities at a particular disadvantage compared with those who did not have caring responsibilities. They argued that this was indirect race discrimination and indirect sex discrimination. Amongst the group of claimants was a British national who lived abroad; she claimed the "same disadvantage" as the disadvantaged group (non-UK nationals). Another was a man who was a carer and claimed the "same disadvantage" as the disadvantaged group (women). Neither of these claimants had the protected characteristic which was relied on in the claim.
Although the tribunal held that section 19 of the EqA 2010, which contains the indirect discrimination provisions, did not appear to allow for associative discrimination, it had to be read in line with EU law principles. Section 19 had to be interpreted in line with the decision in CHEZ Razpredelenie Bulgaria AD v Komisia za zashita ot discriminiatsia where the CJEU had 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. As a result the tribunal upheld the claims.
On appeal the respondent argued that the tribunal had been wrong to uphold the claims by interpreting section 19 EqA 2010 in line with CHEZ. It also argued that if, prior to 1 January 2024 (when section 19A came into force), section 19 could not be read to conform with CHEZ then the introduction of section 19A was ultra vires the Retained EU Law (Revocation and Reform) Act 2023 (REULA). However, the EAT was satisfied that the tribunal had not made an error of law in its interpretation of section 19 and concluded that the introduction of section 19A was not ultra vires.
Take note: This case is a useful reminder that it is possible for claimants who do not have the protected characteristic in question to bring indirect discrimination claims if they can show that they have been subjected to the same disadvantage as those who have the protected characteristic, which is now expressly confirmed under section 19A of the Equality Act 2010.
