Background
British Airways PLC faced claims of indirect sex and race discrimination from 49 Heathrow-based cabin crew members, including Mr. Rollett and others. The claims which were brought before January 2024, arose from a restructuring program that followed the COVID-19 pandemic and introduced new scheduling practices. The claimants alleged that these changes disproportionately affected non-British nationals who commuted from abroad (race) and women with caring responsibilities (sex) - the disadvantaged group.
Key Issues Determined
The central issue in the case was whether those claimants who did not share a protected characteristic with the disadvantaged group could still claim indirect discrimination. For example, one of the claimants was a British national who lived in France and claimed that she suffered the same disadvantage as non British nationals. Another was a man, Mr Rollett who had childcaring responsibilities and claimed he suffered the same disadvantage as women. As they suffered the same disadvantage they claimed that even though they were not of the same race and sex as the disadvantaged group they should be allowed to bring claims under the "same disadvantage" principle of indirect discrimination.
The case follows a previous decision of the European Courts in CHEZ Razpredelenie Bulgaria AD v. Komisia za zashita ot discriminatsia (Case C-83/14). CHEZ held that an indirect discrimination claim could be brought by an individual who suffered the same disadvantage as the protected group irrespective of the fact that they did not share the characteristics of the group that was put at a disadvantage. The Courts finding in that case was based on EU law which does not require an individual to have the protected characteristic of the disadvantaged group. It is enough to establish a claim of indirect discrimination under EU law for a provision criterion or practice (PCP) to put those who share a protected characteristic to be put at a disadvantage.
In order to succeed in a claim for indirect discrimination at the time the claim was brought under the Equality Act 2010, a claimant has to show both that they personally suffer the disadvantage and that they share the protected characteristic of the group disadvantaged by the PCP. The EAT therefore had to determine whether claims for indirect discrimination under the Equality Act 2010 extended to those claimants who did not share the protected characteristic, which in this case was the British national commuting from France and the man with caring responsibilities.
Tribunal Findings
The Employment Tribunal held that it had to interpret the Equality Act 2010 consistent with retained EU law so that those claimants who did not share the protected characteristic but were subjected to the same disadvantage could pursue their claims for indirect discrimination. This included the British national commuting from France, and the man with caring responsibilities.
Appeal and Decision
British Airways appealed the Tribunal's decision, arguing that the tribunal had gone too far in its interpretation and that only claimants with the relevant protected characteristic should be allowed to bring indirect discrimination claims. The Employment Appeal Tribunal (EAT) dismissed the appeal, upholding the original ruling. The EAT determined that claimants suffering the same disadvantage, even without the protected characteristic, could still claim indirect discrimination, provided the employer’s practices had a disproportionate impact on a protected group. They held that the Equality Act could be read in line with EU law and decision in CHEZ ii.n a case which was brought before January 2024 when the interpretative effects of EU law no longer had to apply.
Implications for Union Representatives
Extended Protection: Union representatives should note that from the 1 January 2024 the Equality Act 2010 was amended to expressly allow claims for indirect discrimination where a worker suffers “substantially the same disadvantage” as those who share a protected characteristic and who are disadvantaged by an employer’s provision criterion or practice.
Workplace Practices Scrutiny: Representatives should closely examine workplace policies, such as scheduling or redundancy criteria, to ensure they do not unfairly disadvantage specific groups, even if the effects extend beyond those with protected characteristics.
