UK: EAT confirms that claimants without a protected characteristic can bring 'same disadvantage' indirect discrimination claims

An Employment Appeal Tribunal ruling in British Airways plc v Rollett has confirmed that workers can bring an indirect discrimination claim where an employer's policy or practice puts them at the same disadvantage as a group with a protected characteristic, even though they do not have that characteristic.  

The pre-January 2024 version of the Equality Act 2010 expressly required an indirect discrimination claimant to have the protected characteristic of the disadvantaged group.  The EAT has now agreed with the tribunal that the Act can be construed to conform with an ECJ decision (CHEZ Razpredelenie Bulgaria) permitting "same disadvantage" claims from those outside the group.  As a result, the amendment to the Equality Act 2010 purporting to make this express, in force from 1 January 2024, is not ultra vires.

The claims here arose out of scheduling changes which, it was alleged, disadvantaged employees living and commuting to Heathrow from abroad (who were pre-dominantly non-British nationals) and employees with caring responsibilities (predominantly women).  The EAT ruled that British nationals commuting from abroad and men with caring responsibilities could bring "same disadvantage" indirect discrimination claims.

The EAT did not comment on the tribunal decision in Follows v Nationwide that an individual could bring an associative indirect disability discrimination claim where the employer's policy put them at a disadvantage because of their association with someone with a protected characteristic (they had a disabled dependent for whom they provided care and therefore needed flexible working arrangements).  The employment tribunal in Rollett had rejected this approach.  However, while women continue to provide the majority of care for dependants, a woman in this situation will likely be able to frame her claim as one of indirect sex discrimination and a male carer can bring a 'same disadvantage' indirect discrimination claim.

The confirmation that claimants who 'suffer alongside' a protected group can bring an indirect discrimination claim may lead to an increase in such claims.  The ruling therefore serves as a reminder to employers to review their policies and practices to determine whether they may put a protected characteristic group at a disadvantage and, if so, to consider whether the policy or practice is objectively justified.