Employment Appeal Tribunal rules on indirect discrimination by “Association”

21 August 2024

The Employment Appeal Tribunal (EAT) recently ruled on indirect discrimination by “association” under section 19 of the Equality Act 2010 in the case of British Airways plc v Rollett & Others [2024] EAT 131. The EAT determined that individuals who do not share the protected characteristic of a disadvantaged group can still claim discrimination if they are subjected to the same disadvantage by a provision, criterion, or practice (PCP).

The claimants argued that section 19 should be interpreted to allow claims from those outside the disadvantaged group, citing the CJEU's CHEZ Razpredelenie Bulgaria AD v Komisia za zashita ot diskriminatsia judgment. The respondents contended that such an interpretation would conflict with the Equality Act 2010. However, the EAT found that section 19 could align with CHEZ without contradicting the Act's intent, further supported by the 2023 amendment that introduced section 19A.

Implications for employers

Practical steps

Employers should be aware of the broader implications of this ruling. When implementing any PCP, it is crucial to consider whether it might indirectly discriminate against individuals who do not share the protected characteristic but are associated with those who do. Employers should:

Review policies: Regularly review workplace policies to ensure they do not inadvertently disadvantage employees by association.
Consultation: Engage in meaningful consultation with employees and their representatives when introducing new policies.
Documentation: Document the rationale for any PCP and ensure it can be justified as a proportionate means of achieving a legitimate aim.

Case examples

The case of Follows v Nationwide Building Society is a pertinent example where the Employment Tribunal upheld a claim of indirect associative discrimination. In this case, the claimant was dismissed due to a requirement to be office-based, which put her at a disadvantage because she was the primary carer for her disabled mother. The tribunal found that the requirement was not a proportionate means of achieving the legitimate aim of providing effective managerial supervision.

Additional considerations

Broader legal context

The ruling aligns with the broader legal context established by the CHEZ case, which extends the scope of indirect discrimination to include individuals who suffer the same disadvantage as the protected group, irrespective of their relationship with the group. This concept, sometimes referred to as "discrimination by ricochet," emphasises that the relationship between the primary and secondary victims is incidental rather than essential to the claim.

Future developments

While this ruling is significant, it is essential to monitor future case law and legislative developments. The interpretation of section 19A and its application in various contexts will likely evolve, and employers must stay informed to ensure compliance and mitigate risks of indirect discrimination claims.

Employers should seek legal advice when in doubt and consider training HR personnel and managers on the implications of this ruling to foster a more inclusive workplace environment.