The Employment Appel Tribunal "(EAT)" has held that, in order to bring an indirect discrimination claim, a claimant does not have to have the same protected characteristic as the disadvantaged group as long as they experience the same disadvantage.

The respondent airline introduced new shift patterns for its cabin crew. A group of claimants brought claims arguing, amongst other things, that the scheduling changes were indirectly discriminatory as they put those who lived abroad and commuted to Heathrow from abroad (predominantly non-British nationals) and those with caring responsibilities (predominantly women) at a particular disadvantage. The claims were brought by some claimants who had the relevant protected characteristic and some claimants who did not. The latter group included a British national commuting from France and a man with caring responsibilities.

The question for the EAT to determine was whether indirect race and sex discrimination protections extended to those claimants (including the British national commuting from France and the man with caring responsibilities) who did not have the protected characteristic of the disadvantaged group. The EAT held that they should. Although the wording of the Equality Act 2010 did not (at the time) cover claims of this type, it was appropriate to read wording into the Act to allow such a claim in line with a pre-Brexit judgment of the Court of Justice of the EU which held that indirect discrimination protections extended to those who do not share the same protected characteristic as the disadvantaged group. The EAT took into account the fact that the aim of indirect discrimination is to ‘level the playing field’ by removing rules and practices which put protected groups at a disadvantage.

The Equality Act 2010 was amended with effect from 1 January this year to expressly allow indirect discrimination complaints where a claimant suffers ‘substantially the same disadvantage’ as the protected group. This legislative change and the EAT’s decision both reaffirm the importance of employers considering if any other individuals, outside of the protected group(s), might be similarly disadvantaged by a policy or arrangement.

(British Airways plc v Rollett and others)

Causing or inducing discrimination

The EAT has held that a charity did not cause or induce a barristers’ chambers to discriminate against one of its barristers.

The charity made a complaint to the chambers after the claimant, who holds gender critical beliefs, posted several tweets on Twitter (now X). The chambers upheld the complaint in relation to two of the claimant’s tweets and asked her to delete the tweets. The claimant issued a tribunal claim alleging, amongst other things, that the decision to uphold the complaint was discrimination by the chambers on the ground of her protected belief and that the charity had caused or induced that discrimination. The tribunal upheld this allegation against the chambers but found that the charity had not caused or induced that discrimination. This latter point was appealed to the EAT.

The EAT dismissed the appeal, noting the tribunal’s findings that the complaint was made by the charity as a protest, did not have any specific aim in mind (other than perhaps a public denial by the chambers of any association with the claimant’s views) and did not contain any threat. The EAT agreed that it was not fair, reasonable or just to find the charity liable in these circumstances and so upheld the findings that the charity had not caused or induced the discrimination under the Equality Act 2010. It noted that ‘responsibility for determining the complaint in a discriminatory way lay only with’ the chambers.

(Bailey v Stonewall Equality Ltd and others)

Thought-leadership, themes and trends

Trade union and industrial relations reform

In its Plan to Make Work Pay, the Labour Party shone a spotlight on strengthening worker voice. The new government has backed this up in recent weeks, indicating in the King’s Speech briefing notes that the Employment Rights Bill will address Labour’s proposals to update trade union legislation.

In our latest article, we take a closer look at worker voice and the new government’s plans for trade union and industrial relations reform.