Did you know, you don’t have to have a protected characteristic to claim discrimination?

In the beginning (2015) …

Back in 2015 – which is forever ago in the world of employment law – the European Court of Justice (ECJ) made a ruling in the case of CHEZ Razpredelenie Bulgaria AD v Komisia za zashita ot discriminatsia (‘CHEZ’).  The case on its facts didn’t appear particularly relevant.  It involved a female shop owner in Romania whose shop was in a district predominantly inhabited by Roma.  Due to a high rate of tampering with electricity meters in the area, the electricity company had fixed electricity meters six metres up electricity poles rather than the usual 1.7 metres. This meant that the claimant couldn’t access her electricity meter to take readings or know her usage.  She claimed this was discrimination on the grounds of nationality (later defined by the court in Romania as “ethnicity”), not because she was Roma herself, but because she identified herself with the Roma people in the area and the disadvantage they suffered and argued that she suffered the same disadvantage herself.

This led to the Romanian court referring several questions to the ECJ, the most important for the purpose of this article being whether, despite not being of Roma origin, the claimant could bring a claim of indirect discrimination on the ground of ethnicity or race.

The answer was yes, she could.  She did not need to possess the protected characteristic (in this case ethnicity or race) herself, it was enough that she suffered alongside those of a certain ethnic origin.

This appeared to be directly contrary to the indirect discrimination provisions of the UK’s Equality Act 2010 (section 19), which said (and still does) that for there to be a claim of indirect discrimination there must be a provision, criterion or practice (‘PCP’) that puts a group of people at a disadvantage based on a protected characteristic that the claimant shares.

In 2015, the UK courts were required to interpret the UK legislation in a manner consistent with the EU directive (which reflected the position in CHEZ).  So, the decision had the potential to have an immediate significant impact for employers in the UK.  However, the floodgates didn’t open to a torrent of cases highlighting this extended right to claim discrimination if you were “suffering alongside” a disadvantaged group, even if you yourself weren’t disabled, of a certain race, sex, sexual orientation etc. So, it went largely under the radar in practice.

UK legislation

As part of the complex process of trying to separate the UK’s legal system from the EU’s after Brexit, many provisions were brought in to ensure that elements of EU law which would have fallen away after 31 December 2023 were enshrined within UK legislation.  This included a new section 19A which was inserted into the Equality Act 2010.  This was entitled “Indirect discrimination: same disadvantage” and made sure that the effect of CHEZ became part of UK law.  As a result, a claimant can specifically bring claims with reference to this section where they allege to have suffered indirect discrimination in the absence of having a protected characteristic themselves, providing they suffer substantially the same disadvantage as persons who do share the protected characteristic.

British Airways plc v Rollett

In late 2022, prior to the introduction of the new section 19A, the EAT was asked to consider a preliminary issue of whether the Employment Tribunal (ET) had jurisdiction to hear this type of discrimination claim in the case of British Airways plc v Rollett.

The case involved a restructure carried out by British Airways, which resulted in scheduling changes.  49 Heathrow-based cabin crew brought claims.  The claims included claims of indirect discrimination, arguing that the schedule changes put:

• employees (predominantly non-British nationals) who lived abroad, and commuted from abroad to Heathrow, at a particular disadvantage compared to those who commuted within the UK; and
• employees (predominantly women) with caring responsibilities at a particular disadvantage compared to those who didn’t have caring responsibilities.

The claims were brought by people who had the protected characteristic (i.e. non-British nationals and women) and those who didn’t.  Examples of some of the employees who didn’t share the protected characteristic but who brought claims were:

• A British national who lived in France and commuted – she claimed to suffer the same disadvantage as non-British nationals commuting from abroad; and
• A male employee who had caring responsibilities, who claimed to suffer the same disadvantage as women with caring responsibilities.

The EAT agreed with the Tribunal that it could consider claims of indirect discrimination brought by claimants who didn’t have the protected characteristic of the disadvantaged group but who claimed to share the same particular disadvantage – even in relation to acts which took place before section 19A was in force.  It would seem even clearer that this is the case now.

The importance of the British Airways plc v Rollett case is less about the findings of the ET and EAT; it was only at Preliminary Hearing stage and there hasn’t actually been any findings in respect of the merits of the claims at this stage. It also related specifically to a niche point about the status pre-1 January 2024 before section 19A was in force.   The bigger point of interest as far as we are concerned is how this case really brings to life what this extension of discrimination rights looks like in practice.

Practical impact

It is clearly now going to be harder for employers to anticipate who could bring a claim of indirect discrimination, given that having a protected characteristic is no longer a requirement.  Practices and decisions which have historically been made based on a risk analysis of who may be able to bring a claim against the company may need to be rethought.

A classic example is that many employers prioritise flexible working requests to work part time made by women on the basis it is generally accepted that the requirement to work full-time disadvantages women more than men because women tend to be the primary carers for children.  A man would, therefore, struggle to establish himself as being part of a disadvantaged group for the purpose of an indirect discrimination claim, even if he did want to reduce his hours for childcare reasons.   The legal risk, historically, has therefore sat with women in this situation.  However, this case has highlighted that a man would no longer need to establish himself as part of the disadvantage group (i.e. women), he just needs to show that he suffers alongside them as a primary care giver.

It could be that this continues to fly somewhat under the radar for employees and their advisors, but these things do tend to pick up momentum once the potential is properly considered.  Given the Rollett case put what felt to be a techy legal argument into a very real-world scenario, we think there will be a few eyes on the final judgment when this is considered by the Employment Tribunal – and it could start to open the door to more creative claims by employees and their advisors.  So be ready to think laterally and consider all potentially affected individuals when considering the possibility of indirect discrimination claims.