Disadvantage and indirect discrimination

Can an employee without a “protected characteristic” claim indirect discrimination where they have been disadvantaged by their employer in substantially the same way?

This question was recently considered by the Employment Appeal Tribunal (EAT).

Background

Following a restructure, British Airways made some scheduling changes.  Several Heathrow-based cabin crew claimed that the new schedule was indirectly discriminatory on the grounds of race. They argued that it disadvantaged non-British nationals, who were more likely to commute from abroad. Further, it was discriminatory on grounds of sex, as it disadvantaged women who were more likely to have caring responsibilities.

The claimants included some employees with the protected characteristics of being non-British nationals and women, as well as those without. For example, one claimant was a British national who lived abroad, and another was a man with caring responsibilities. They claimed that whilst they did not share the same protected characteristics as the non-British nationals and women, they did suffer the same disadvantage.

The Employment Tribunal held that, whilst the Equality Act 2010 required the claimant in an indirect discrimination claim to share the protected characteristic with the group that is at a disadvantage, it was equally clear that the Act did not properly implement the EU legislation and that it was not necessary for the claimants to share the protected characteristic of the disadvantaged group to be successful in indirect discrimination claims.

Employment Appeal Tribunal

The EAT agreed with the Employment Tribunal, commenting that the protection against indirect discrimination within the Act is to remove rules and practices which are not directed at or against people with a protected characteristic but have the effect of putting them at a disadvantage.

Extending the protection against indirect discrimination in this manner is entirely consistent with the Act’s purposes.

Comment

The Equality Act 2010 was amended in January 2024 so that a claimant bringing an indirect discrimination claim does not need to have the same protected characteristic as the disadvantaged group.

The claimant only needs to show that they share substantively the same disadvantage as those with a particular protected characteristic.

You can still defend an indirect discrimination claim as an employer by showing objective justification for a “provision, criterion or practice” (PCP). When introducing any new rule, general practice, system or procedure, consider:  

• What you want to achieve (the business need)
• How can it be achieved
• Is it a proportionate means of achieving that aim, i.e. is it reasonably necessary?
• Are there less discriminatory means of achieving that aim?
• Does the business need outweigh the impact on the protected group?

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