Claimant does not need to share disadvantaged protected characteristic to bring an indirect discrimination claim

The Employment Appeal Tribunal has confirmed in British Airways Plc v Rollett and others that there is a much wider scope for individuals to bring indirect discrimination claims than first thought.

The Equality Act 2010 initially provided that in order to bring an indirect discrimination claim, there must be:

• A provision, criterion or practice (PCP) operated by the employer
• Which places individuals with a particular protected characteristic at a substantial disadvantage
• The individual has the relevant protected characteristic
• The individual is put at that disadvantage

Case law in the ECJ later established that the European law on which this element of the Equality Act was based did not require the individual bringing the claim to have the relevant protected characteristic, provided they were put at the same disadvantage as people who did have that protected characteristic.

The Equality Act 2010 was amended with effect from January 2024 to reflect this, and we now have an EAT decision in relation to matters that occurred prior to January 2024 that upholds this principle.

In response to the Covid pandemic, British Airways went through a restructuring exercise which involved scheduling changes. The multiple claimants asserted that the changes were to the substantial disadvantage of particular groups and were therefore indirectly discriminatory:

• Employees who lived abroad and commuted to Heathrow from abroad, were discriminated against on grounds of race as the majority of such employees were non-British nationals
• Employees with caring responsibilities, were discriminated against on grounds of sex as more women than men have childcaring responsibilities

The EAT found that, applying the European case law, individuals did not have to share the relevant protected characteristic if they suffered the same disadvantage. For example:

• A British national who commuted from France, is not non-British, but suffers the same disadvantage as a non-British national commuting from France
• A male employee with caring responsibilities, is not female, but suffers the same disadvantage as a female employee with caring responsibilities

This case is a reminder of the potential scope for claims under the new section 19A of the Equality Act 2010 from those who suffer disadvantage from a discriminatory policy, but whom employers would not normally consider “discriminated against”.

Employers who are restructuring or introducing new policies need to be mindful of the risk of indirect discrimination claims from all disadvantaged employees, not just those with a particular protected characteristic.