UK: tribunal ruling supports possibility of indirect discrimination claims from those who "suffer alongside" a group with a protected characteristic

A recent tribunal ruling could encourage indirect discrimination claims from a broader category of claimant.  The first instance, preliminary ruling applies the decision of the European Court of Justice in Chez Razpredelenie Bulgaria (see here) to hold that, where individuals with a protected characteristic are indirectly discriminated against, a claimant who does not have the characteristic but "suffers alongside" those individuals can also bring an associative indirect discrimination claim (by reading in appropriate words to the Equality Act 2010).

In Rollett v British Airways, the claim was that changes to shift patterns indirectly discriminated on the grounds of race against those who commuted to Heathrow from mainland Europe (who were disproportionately non-British).  As the British claimant also commuted from Europe and so suffered the same disadvantage, her claim was permitted to go ahead.

However, the tribunal was not prepared to extend the protection further to permit indirect discrimination claims where the claimant themselves does not suffer the same disadvantage as the group with a protected characteristic.  It did not agree with the approach taken in the earlier decision (also first instance) of Follows v Nationwide (see here) permitting an associative indirect discrimination claim where, rather than suffering the same disadvantage as disabled employees, the claimant's disadvantage was in being prevented from caring for an associated person with a protected characteristic (her disabled mother).

Employers should therefore keep a watch on developments in this area and be aware that the lack of a relevant protected characteristic will not necessarily prevent well-informed employees claiming indirect discrimination in appropriate cases.  One example might be where a policy indirectly discriminates against women due to childcare responsibilities, and men with childcare responsibilities suffer the same disadvantage.  Of course, post Brexit it will be open to the Court of Appeal or Supreme Court to depart from the CHEZ ruling if the issue comes before them.