Hi everyone Kyle here, happy Friday and thank you for joining us for another case of the week. For those that missed out announcement, Philip and Oscar have recently launched YogaHR. For more details the website can be found here.
Last week, we looked at the case of Birkett v Integral UK Ltd and an unfair redundancy dismissal. To find out more, click here.
This week, we are examining a recent Employment Appeal Tribunal (EAT) decision in Rollett & Others v British Airways. The case raises an intriguing question: can someone experience indirect discrimination based on a characteristic they do not possess?
The Claimants in this case were approximately 49 cabin crew staff who worked for British Airways. The Respondent, struggling to recover financially in the wake of travel restrictions, sought to restructure the business to increase efficiency. As part of the restructure, scheduling changes were made, which the Claimants alleged would disadvantage non-British nationals, who were more likely to commute from abroad. The scheduling changes introduced less predictable working patterns and reduced the time crew members could spend at home between shifts. The Claimants also argued that the changes would disadvantage women, who were more likely to have caring responsibilities. Two Claimants were highlighted as part of the claim: the first, a man who was a carer, and the second, a woman who was a British national living abroad. Both claimed they suffered the same disadvantage as the disadvantaged groups—being women and non-UK nationals, respectively. However, neither of the Claimants possessed the protected characteristic relied upon in the claim.
The Tribunal had to consider whether the wording of section 19 of the Equality Act 2010 allows for associative indirect discrimination. For those unfamiliar, section 19 addresses indirect discrimination where a Provision, Criterion, or Practice puts, or would put, a person with a protected characteristic at a substantial disadvantage because of that characteristic. On the face of the legislation, associative indirect discrimination was not permitted.
The Employment Tribunal (ET) found that section 19 must be interpreted in light of EU legal principles as much as possible. The ET referred to case law from the Court of Justice of the European Union (CJEU), which suggests that a person may bring a claim for indirect discrimination even if they do not possess the protected characteristic, provided they suffer the same disadvantage as someone who does have that characteristic.
An appeal was made to the EAT, which stated that the ET had erred in law by overstepping the bounds of interpretation and effectively amending the wording of the section.
Takeaway Points
While section 19A has been introduced as part of the retention of EU law to enshrine specifically this principle, it is worth considering its implications.
Considering the impact that a proposed restructure has on those with different protected characteristics is crucial to ensuring that businesses do not have similar claims brought against them. Given the impact of the point an appeal is likely.
I am sure a certain Clacton MP would have strong opinions on this issue, though he’s likely far too busy in the US to notice!
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