Indirect associative discrimination occurs when a provision, criterion, or practice (PCP) applied by an employer disadvantages a group sharing a protected characteristic, and an individual who does not share that characteristic but suffers the same disadvantage can also bring a claim. This concept was confirmed in the case of British Airways PLC v Rollett and Others [2024] EAT 131, which has significant implications for UK employment law.
Case summary
In the British Airways PLC v Rollett and Others case, 49 Heathrow-based cabin crew members brought claims of indirect discrimination following a restructuring exercise by British Airways. The claimants argued that the new scheduling changes disadvantaged employees living outside the UK (predominantly non-UK nationals) and those with childcare responsibilities (mainly women). Notably, some claimants did not share the protected characteristics of the disadvantaged groups but experienced the same disadvantage, leading to claims of associative indirect discrimination.
Tribunal and appeal decisions
The Employment Tribunal (ET) initially ruled that the Equality Act 2010 (EqA 2010) could be interpreted to include claims of associative indirect discrimination, aligning with the European Court of Justice’s decision in CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia [2015]. The ET's decision was upheld by the Employment Appeal Tribunal (EAT), which confirmed that UK law should be interpreted in line with EU law "so far as possible".
Legal framework
Under Section 19 of the EqA 2010, indirect discrimination occurs when a PCP applied by an employer puts people with a particular protected characteristic at a disadvantage compared to others. The EAT ruled that this protection extends to individuals who suffer the same disadvantage, even if they do not share the protected characteristic. This interpretation aligns with the principle of equal treatment and the purpose of the EqA to harmonize and strengthen discrimination law.
Practical Implications for employers
Employers must carefully examine their PCPs to ensure they do not inadvertently disadvantage groups of employees, including those who do not share the protected characteristic but suffer the same disadvantage. High-risk areas include scheduling, redundancy, and flexible working policies. Employers should consult with employees or their representatives to assess the impact of proposed PCPs and consider legitimate justifications for their policies.
Additional considerations
Legislative amendments: The Retained EU Law (Revocation and Reform) Act 2023 introduced Section 19A to the EqA 2010, explicitly allowing claims of indirect discrimination by individuals who suffer "substantively the same disadvantage" as the protected group.
Case law: The CHEZ case and subsequent UK tribunal decisions have been instrumental in shaping the understanding and application of associative indirect discrimination in UK law.
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