Rollett v British Airways [2024] EAT 131

Facts

A number of people filed actions alleging indirect discrimination. This came after the Respondent reorganised and made adjustments to the schedule. They claimed that since non-British citizens were more likely to commute from overseas, the timetable (a PCP) unfairly disadvantaged them (indirect racial discrimination). Additionally, it was discriminatory against women since they were more likely to be responsible for others. A male caretaker who claimed to be at the "same disadvantage" as the women in the disadvantaged group was one of the claimants. A British citizen who resided overseas was another. She said that non-UK nationals were under the "same disadvantage" as the disadvantaged group. The protected characteristic that was cited in the claim was absent from both of these claimants.

The employment tribunal determined that associative indirect discrimination was not, on its face, permitted under s. 19 of the Equality Act 2010, which includes the rules pertaining to indirect discrimination. But as much as practicable, it had to be interpreted in accordance with the norms of EU law. The Court of Justice of the European Union (CJEU) concluded in the services case of CHEZ Razpredelenie Bulgaria AD v Komisia za zashita ot discriminatsia that an individual might claim indirect discrimination even in the absence of a relevant protected characteristic if they experienced the same disadvantage as the group that did. In light of CHEZ, the panel used s19 and affirmed the allegations.

Held

The Respondent filed an appeal, claiming that in attempting to interpret s.19 EqA in a way that would have been consistent with the CHEZ principles, the tribunal had erred in interpreting the law in a way that was either permitted or improper. The EAT rejected the appeal, ruling that the panel had not committed any such legal mistake.

Comment

EAT confirms tribunal was correct to allow claim for indirect associative discrimination under s19 Equality Act 2010. It is worth noting that the principle in CHEZ has now (from 1st January 2024) been directly enshrined into UK law as s19A Equality Act 2010.