Background:

The claimants were Heathrow-based cabin crew. There were scheduling changes made during the pandemic with staff who were non-British nationals who lived abroad and those who commuted to Heathrow from abroad arguing that they were put at a disadvantage. To this end, an argument was raised about the changes being indirectly discriminatory based on race, which includes nationality. There was also an argument citing that the changes would be indirectly discriminatory on the basis of sex due to women having greater caring responsibilities. The interesting aspect of this case was the fact that there were British nationals arguing that they were discriminated against for living abroad and that they should be treated the same as the non-British nationals stating that they were indirectly discriminated against on the basis of race.

Outcome:

The EAT, upholding the decision of the Tribunal, found that the claimants who did not have the protected characteristic (i.e. were British nationals living abroad) could claim indirect discrimination under Section 19 of the Equality Act 2010.  This is despite that section, which deals with indirect discrimination generally, stating that the individual must have the protected characteristic. The basis of this was the Court of Justice of the European Union’s decision in CHEZ which allowed for indirect discrimination to extend to those who did not have the same protected characteristic as the disadvantaged group but were still disadvantaged. The court related the benefit of such an interpretation to an unjustified minimum height requirement which they stated would be indirectly discriminatory on the basis of sex as women are more likely to be shorter but that its removal would benefit both shorter female and male colleagues. Accordingly, it was found to be indirectly discriminatory and even those without the characteristic were able to make an application.

Practical Guidance for Employers:

This is a potentially groundbreaking decision which may continue to go through the appeals channels. The fact that it is allowing for those without the characteristic to claim indirect discrimination where there is such an effect on a group does widen the net in terms of potential claimants for PCPs brought in which may be argued as indirectly discriminatory. It should be noted that this decision was made on the basis of the Marleasing principle requiring the re-interpretation of domestic legislation to be in compliance with EU Law.  The previous Conservative Government stated that it would not apply from the start of 2024 so it may be the case that this case only provides a precedent for cases from a certain time.  However, that may not be the case in Northern Ireland considering the potential effect of the Windsor Framework and the need to retain rights emanating from EU Law.

https://assets.publishing.service.gov.uk/media/66bdccccc32366481ca49110/British_Airways_PLC_v_1__Mr_B_Rollett_and_others_2__Minister_for_Women_and_Equalities__2024__EAT_131.pdf