In the case of Rollett v British Airways (BA), the claimants were a number of British Airways cabin crew who were based out of Heathrow Airport. BA carried out a restructuring which involved scheduling changes. The claimants argued that the restructuring disadvantaged them in a number of ways relating to the protected characteristics of nationality and/or sex, including that:
Some of the claimant cohort brought claims for indirect discrimination on this basis. Others brought claims of indirect associative discrimination. Indirect associative discrimination applies where a claimant does not personally possess the relevant protected characteristic, but argues that they are subject to the same disadvantage as the group who do share it. For example, one of the claimants was a British national who lives in and commutes from France. She argues that she suffers the same disadvantage as non-British nationals. Another of the claimants is a male employee with caring responsibilities. He argues that he is being put to the same disadvantage as women with caring responsibilities.
Under section 19 Equality Act 2010, indirect discrimination occurs where a provision, criteria or practice (PCP) is applied to a group, and places people with a protected characteristic at a particular disadvantage compared to people who do not share that characteristic. This section of the Equality Act requires the claimant to possess the protected characteristic in order to bring a claim.
However, the EU case law position is that it is possible for a claimant to claim indirect associative discrimination. This applies where a claimant does not personally possess the protected characteristic in question, but suffers the same disadvantage due to their association with the group who do share it.
A preliminary hearing took place in 2022. At that hearing, the Tribunal held that based on the EU case law position, protection from discrimination extended to those who did not share the protected characteristics of nationality or sex.
BA appealed to the EAT. It argued that the Tribunal's decision was incompatible with our domestic legal framework and that in reaching its decision the Tribunal had amended domestic law in seeking to apply EU law principles.
The EAT rejected BA's appeal. The Tribunal made no error of law in its determinations. The EU case law position was compatible with domestic law in that it strengthened the law and allowed the UK to ensure its domestic framework properly aligned with the source EU Directive.
This case provides helpful clarification as to the interaction between the EU case law position and our domestic legal framework, namely that the two regimes are not incompatible so that it is possible to bring claims for indirect associative discrimination.
In any event, on 1 January 2024, the EU case law position was enshrined in our domestic law, with the introduction of section 19A Equality Act 2010. This section of the Equality Act now provides the statutory basis to allow a claimant to claim indirect associative discrimination where they are put to the same disadvantage as a group of people who share a protected characteristic.