UK: Indirect Associative Discrimination

Authors: Graham Mitchell, Corinna Harris & Sophie Jackson

For indirect discrimination to be established, the Equality Act requires claimants to both personally suffer the disadvantage and share the protected characteristic of the group disadvantaged by the provision, criterion or practice (PCP).

The Claimants were employed by British Airways plc as Heathrow-based cabin crew. The claims arose out of a restructuring exercise.  The Claimants submitted that, as BA’s main hub is at Heathrow airport, scheduling changes put certain groups at a disadvantage, including:

• Employees (predominantly non-British nationals) who lived in mainland Europe, and commuted to Heathrow from abroad, were at a particular disadvantage compared to those who commuted from within the UK (indirect race discrimination)
• Employees who commuted from mainland Europe claimed they were put at the same disadvantage although they did not share the relevant protected characteristic (associative indirect race discrimination).

At a Preliminary Hearing, the tribunal found that it could hear claims for associative indirect discrimination under the Equality Act.

The EAT agreed, finding that, in addition to claims where there is a PCP that puts people with a particular protected characteristic at a disadvantage, the Equality Act can allow claims where a claimant shares the same disadvantage, but does not have the same protected characteristic as the disadvantaged group.

Key Action Points for Human Resources and In-house Counsel

This decision means that the lack of a relevant protected characteristic will not necessarily prevent employees from bringing indirect discrimination claims.  An example may be a policy that puts women with caring responsibilities at a disadvantage and men with caring responsibilities share the same particular disadvantage and so could claim associative indirect sex discrimination.

British_Airways_PLC_v_Rollett_&_others,_Minister_for_Women_&_Equalities