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Background: Indirect discrimination (s19 Equality Act (EqA) is where A applies a provision, criterion or practice (known as a PCP) which puts persons (with whom B shares a protected characteristic) at a disadvantage.
On the face of this definition, it does not cover associative discrimination – as B needs to share the same protected characteristic as the disadvantaged group.
However, the European Court of Justice (ECJ) said in Chez Razpredelenie Bulgaria AD that indirect discrimination can occur if B can show they suffered the ‘same disadvantage’ as the group with the protected characteristic.
Facts: In 2020 British Airways restructured its business due to pressures of the Covid-19 pandemic. This involved making changes to schedules which affected employees’ shifts and flexible working patterns. A number of employees claimed that these changes amounted to a PCP which put them at a particular disadvantage, including a group of:
In addition several employees claimed indirect (‘associative’) discrimination on the basis they suffered the ‘same disadvantage’ as these groups. For example, a male employee said he suffered the same disadvantage as the female staff due to his caring responsibilities and a British national who lived abroad said she shared the same disadvantage (difficulties with commuting from abroad) as the non-British nationals.
British Airways said these claims were not permitted under s19 EqA (as indirect discrimination required the disadvantaged group to share the same protected characteristic) and Chez did not change this.
Tribunal decision
The Tribunal said the employees could bring their associative indirect ‘same disadvantage’ discrimination claims. Although, on the face of it, s19 EqA did not allow such claims, it had to be read in line with Chez.
British Airways appealed.
EAT decision
The EAT dismissed the appeal. S19 EqA should be interpreted to allow this form of discrimination. In particular, this was entirely consistent with the purpose of the EqA which was to support progress on equality. The fact that the government had (since the Tribunal decision) inserted s19A into the EqA endorsed this view. S19A says ‘A discriminates against B if it applies a PCP which puts persons who share a protected characteristic at a disadvantage and puts B at substantively the same disadvantage (even though B does not share the protected characteristic)’.
Implications: Indirect associative discrimination claims based on ‘same disadvantage’ are valid claims which can be brought under the EqA. We may well see an increase in such claims.
In particular, the rise in men sharing childcare (or other caring) responsibilities could well lead to more claims. Similar to Rollett, they can piggy back on an indirect discrimination claim by female staff. For example, a requirement to work full-time (PCP) that leads to complaints by female staff (that they are put at a disadvantage due to caring responsibilities) could be joined by a male carer who shares the ‘same disadvantage’.
However, don’t forget that (similar to all indirect discrimination) you maybe able to justify a PCP – as long as it is a ‘proportionate means of achieving a legitimate aim’. For example, you may be able to justify the requirement to work full-time based on the needs of the particular role, such as meeting customer demands or regulatory deadlines.
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