A recent ruling from the Employment Appeal Tribunal provides a real-life example of claimants’ ability to challenge an indirectly discriminatory policy without sharing a protected characteristic with the primarily disadvantaged group.
In this case British Airways had changed its scheduling arrangements in response to COVID. The claimants alleged that these new arrangements disadvantaged non-British nationals, who were more likely to commute from abroad (potentially indirect race discrimination). It also disadvantaged women, who were more likely to have caring responsibilities (potentially indirect sex discrimination). Among the group of claimants was a man who was a carer and claimed the same disadvantage as the disadvantaged group (women). Another was a British national who lived abroad. She claimed the same disadvantage as the disadvantaged group (non-UK nationals).
At a preliminary hearing, the employment tribunal ruled that it had jurisdiction to consider these claims alongside the claims for “ordinary” indirect discrimination. This ruling has now been confirmed by the EAT. The principle of associative (or “same disadvantage”) indirect discrimination has been recognised in the case law of the European Court of Justice for nearly 10 years, but appellate rulings in Britain on this point are rare. Since 1 January 2024 the position has been clarified by adding a new section 19A to the Equality Act, but the ET’s ruling in this case pre-dated that amendment.
Same advantage indirect discrimination claims are most likely to be encountered in group ligation where the majority of claimants do share a particular protected characteristic. In this sense they are similar to “piggy back” claims in equal pay litigation, where men working under the same terms and conditions as the female claimants can benefit from their success in levelling up their pay to that of their higher paid male comparators. But unlike in equal pay litigation there is no reason in principle why freestanding claims are not possible, where there is clear evidence that a policy disadvantages at least one protected group.
One obvious example - which is reflected in this latest ruling – is where a male carer wishes to challenge a workplace policy which is potentially indirectly discriminatory against women, who are statistically more likely to be primary carers than men. This kind of situation has been described in the European Court “discrimination par ricochet” – in other words where there is wider “collateral damage” from a policy that puts people who do share a protected characteristic at a particular disadvantage.
Finally, it is worth adding that with all these examples, we are looking at potential indirect discrimination. Unlike direct discrimination claims (other than those related to age) it is always possible for an employer to justify indirect discrimination if it can show the policy being challenged is a “proportionate means of achieving a legitimate aim”.
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