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EAT confirms tribunal was correct to allow claim for indirect associative discrimination under s19 Equality Act 2010
Adrian Fryer
‘Associative discrimination’ occurs when someone faces a disadvantage but does not hold the relevant protected characteristic (meaning either sex, race, disability, sexual orientation, religion or belief, age, gender reassignment, pregnancy or marriage) themselves. UK law already recognises direct associative discrimination and harassment. For example, in Coleman v Attridge Law, the European Court of Justice ruled that an employee could claim discrimination due to her child’s disability.
However, the position for indirect discrimination was less clear. Could an employee, who suffered the same disadvantage as a protected group, but didn’t share the characteristic, make a claim for indirect discrimination under s19 Equality Act 2010? The recent Employment Appeal Tribunal decision in Rollett v British Airways confirmed that they could. Even though separate legislation now covers this under s19A Equality Act 2010, the case remains significant.
In Rollett, a group of employees claimed indirect race and sex discrimination due to changes in their work schedules after a company restructure. They argued that the new schedule disadvantaged non-British nationals (more likely to commute from abroad, indirect race discrimination) and women (more likely to have caregiving responsibilities, indirect sex discrimination). Among the claimants were a male caregiver and a British national living abroad. Neither shared the protected characteristic of the group but claimed they suffered the ‘same disadvantage’.
The employment tribunal agreed that s19 Equality Act 2010 should be interpreted to allow for associative indirect discrimination, following the EU law principles set out in CHEZ Razpredelenie Bulgaria AD v Komisia za zashita ot discriminatsia. The tribunal upheld the claims, even though the claimants didn’t have the specific protected characteristics.
British Airways appealed, arguing the tribunal had overstepped in its interpretation of s19. However, the Employment Appeal Tribunal dismissed the appeal, supporting the tribunal’s decision.
As of January 1, 2024, the principle in CHEZ is directly incorporated into UK law under s19A Equality Act 2010, confirming that a person can claim indirect discrimination even if they don’t share the relevant protected characteristic – as long as they suffer the same disadvantage as those who do.