Indirect discrimination – “same disadvantage”
22 August 2024
A recent decision from the Employment Appeal Tribunal (EAT) has confirmed that claimants who do not share a relevant protected characteristic, but who share the same disadvantage as those with that protected characteristic, are entitled to bring a claim for indirect discrimination.
Facts of the case
This case concerns claims brought against British Airways by a group of cabin crew following a restructuring exercise and scheduling changes, including claims for indirect discrimination.
The claimants argued that the scheduling changes (a provision, criterion or practice (PCP) applied by BA) had the following effects, which they claimed amounted to indirect discrimination:
- It put those employees who lived abroad (who are predominantly non-British) at a particular disadvantage compared to those who lived and commuted within the UK.
- It put employees with caring responsibilities (predominantly women) at a particular disadvantage compared to those without such responsibilities.
The group of claimants included some individuals who did not share the same protected characteristics (of being non-British, or women) but who claimed to suffer the same disadvantage as those who did. For example, a British national who lived in France, and a male employee with caring responsibilities.
At a preliminary hearing in December 2022, the employment tribunal held that it had jurisdiction to hear indirect discrimination claims brought by those without the same protected characteristic but who suffered the same disadvantage, as a result of the employer’s PCP.
This principle was established in a case decided by the ECJ in 2015, known as CHEZ, in which the court held that under the applicable EU directive, a claimant can establish indirect discrimination even if they do not share the protected characteristic of the disadvantaged group, provided they can show the same “particular disadvantage”.
BA appealed against the tribunal’s decision, arguing that the relevant provisions of the Equality Act 2010 could not be interpreted to allow claims for indirect discrimination by those without the relevant protected characteristic.
EAT decision
The EAT has dismissed BA’s appeal, finding that the tribunal had made no error of law in its decision that it had jurisdiction to hear the indirect discrimination claims of those without the relevant protected characteristic. It was satisfied that the applicable provisions of the Equality Act 2010 could be interpreted and applied to give effect to the ECJ decision in the CHEZ case.
The Birketts view
This case pre-dates 1 January 2024 but with effect from that date, the Equality Act 2010 was amended to enshrine in UK law certain principles of ECJ law that would otherwise have ceased to have effect at the end of the Brexit transition period. A new section 19A now gives express effect to the ECJ decision in CHEZ, meaning that claimants without the protected characteristic of the disadvantaged group, but who suffer the same disadvantage, will be able to pursue claims for indirect discrimination.
Note that the employment tribunal has not yet decided the merits of the claimants’ case; the EAT has only confirmed that the tribunal has jurisdiction to hear the case. The EAT’s decision does however illustrate the type of claim that may be brought for indirect discrimination under the principle of “same disadvantage”. In particular, we would anticipate that male employees with caring responsibilities and whose flexible working requests are rejected, may now seek to bring claims for indirect sex discrimination on the basis that they are similarly disadvantaged as women with caring responsibilities. Employers should not assume that employees without a protected characteristic cannot bring the same claim as those who do, if they suffer the same disadvantage.
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Liz Stevens
Services
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at August 2024.