What is indirect discrimination?
An indirect discrimination claim is a claim brought under section 19 of the Equality Act 2010 (‘the Act’), in which a worker asserts that a provision, criteria or practice (‘PCP’) of their employer is discriminatory. In order to succeed in claiming indirect discrimination, a worker must show that:
- There is a PCP.
- The PCP applies to those who share the worker’s protected characteristic (e.g. their race, disability, religion, age or sex), as well as those who do not share this protected characteristic.
- The PCP places the group sharing the worker’s protect characteristic at a particular disadvantage in comparison to the group that does not share the protected characteristic (group disadvantage).
- The PCP therefore places the worker at this particular disadvantage.
- The employer cannot justify the PCP as being a proportionate means of achieving a legitimate aim.
An example of a discriminatory PCP may be when an employer bans its workers from wearing headscarves, which would apply to all workers but would place Muslim women at a particular disadvantage.
If a worker believes that the group which they share a protected characteristic with suffers a disadvantage because of a PCP, and that they suffer this disadvantage themselves, they can submit an employment tribunal claim for indirect discrimination.
What about workers who do not share the protected characteristic of the group being discriminated against, but still suffer the disadvantage?
In some cases, a worker may be disadvantaged by a discriminatory PCP even when they do not possess the protected characteristic of the group which is being discriminated against. The case of British Airways plc v Rollett considered whether workers who do not share the protected characteristic of the group being discriminated against, but still suffer the disadvantage, can bring an indirect discrimination claim.
In this case, British Airways was undertaking a restructuring exercise which resulted in widespread scheduling changes for Heathrow-based cabin crew. A number of cabin crew workers brought employment tribunal claims for indirect discrimination. These workers argued that the scheduling changes put those who lived abroad, who were predominantly non-British nationals, and commuted to Heathrow at a particular disadvantage. The workers also argued that the scheduling changed put those with caring responsibilities, mainly women, at a particular disadvantage compared to those without caring responsibilities.
Some of the workers who brought indirect discrimination claims did not share the protected characteristics of the groups which were alleged to have suffered discrimination. For instance, some workers had to commute from abroad although they were British nationals, other workers had caring responsibilities but they were men. These workers asserted that they suffered the same disadvantage being asserted by those workers with the protected characteristics of being non-British or women, even though they themselves did not possess these protected characteristics.
Section 19 of the Act states clearly that a worker bringing in an indirect discrimination claim must share the protected characteristic of the group suffering the disadvantage. However, prior to this case the European Court of Justice (ECJ) had ruled that indirect discrimination extended to those who did not share the protected characteristic of the group but suffered the disadvantage. The employment tribunal in British Airways plc v Rollett therefore decided that it should interpret section 19 of the Act to extend to workers not sharing the protected characteristic, in order to comply with the ECJ ruling.
British Airways appealed to the Employment Appeal Tribunal (EAT), arguing that the employment tribunal was not able to interpret section 19 of the Act as extending to workers who did not share the protected characteristic of the group discriminated against. British Airways asserted that the wording of section 19 clearly required the individual to share the protected characteristic of the group, and that new statutory provisions were required to extend the protection to workers without the protected characteristic.
The EAT dismissed the appeal, stating that the original tribunal had not made an error of law in interpreting section 19 of the Act to extend the protection to workers without the relevant protected characteristic. In reaching this decision, the EAT considered that the interpretation by the original tribunal was ‘in the grain’ of the Act, which sought to harmonise discrimination law and strengthen the law to support progress on equality. The EAT held that it is still necessary to prove that a group who shares a protected characteristic is placed at a disadvantage, once this is established a claim can be brought by a worker who suffers a disadvantage even if they do not possess the relevant protected characteristic themselves. The EAT commented that this interpretation is still likely to assist the desired result of equality for those who do possess the protected characteristic in question.
In light of the EAT decision, a worker who suffers a disadvantage due to a discriminatory PCP can still bring an indirect discrimination claim even if they do not themselves possess the relevant protected characteristic. This protection has also been implemented in statute by the introduction of section 19A of the Act, which provides this protection to workers from the 1 January 2024.
This blog was written by Yavnik Ganguly, solicitor at didlaw.
