Comment

This decision resolves doubt as to whether the EU concept of associative indirect discrimination could be read into UK law in relation to events prior to the EqA amendments on 1 January 2024, given that a natural reading of the EqA would have precluded it. 

If the EAT had decided otherwise, it would have called into question the government's power to have amended the EqA as it did. This is because that power was arguably predicated on associative indirect discrimination already being part of UK domestic law.  

In more detail

Legal background

This case concerned the EU definition of indirect discrimination and how this might overrule seemingly non-compliant parts of the UK's definition of that concept. 

Under section 19 EqA, indirect discrimination occurs where the employer operates an apparently neutral provision, criterion or practice (PCP) that places people with a particular protected characteristic at a particular disadvantage as compared to people who do not share that characteristic. The claimant themself must share the protected characteristic and suffer the same disadvantage. Indirect discrimination does not arise if the employer can objectively justify the PCP. 

One of the most common examples of potential indirect discrimination is a requirement that everyone must work full-time as this is likely to disproportionately affect female workers as they are more likely to have caring duties at home and therefore be unable to comply with this policy (unless the requirement can be objectively justified). Under s.19 EqA, a female employee would be able to bring a claim but a male employee would not.

In 2015, while the UK was a member of the EU, the ECJ decided that the protection from indirect discrimination extended to those who did not share the same protected characteristic as the disadvantaged group if they had nevertheless also suffered the same disadvantage as a result of the PCP. This is usually referred to as associative indirect discrimination.

Under the Marleasing principle of EU law, still applicable to the time of the events in this case, UK courts had to interpret UK law in a manner consistent with ECJ case law as far as possible, provided this went with the grain of the UK legislation and did not effectively turn it inside out. 

The issue in this case was whether, in relation to events prior to 1 January 2024, s.19 EqA could permissibly be interpreted as including associative indirect discrimination.

With effect from 1 January 2024, the Marleasing principle was revoked in the UK under the Retained EU Law (Revocation and Reform) Act 2023 (REULA), in relation to events occurring on or after that date. This would have undermined claims that UK law included the concept of associative indirect discrimination. However, with effect from 1 January, the government introduced a new s.19A EqA, which effectively reproduced and preserved the concept of associative indirect discrimination.

This case raised an issue about whether the government had the power to introduce s.19A.

Facts

In 2020, British Airways restructured its business as a result of the enormous impact of the coronavirus pandemic on air travel. The restructure included scheduling changes, which some employees alleged were indirectly discriminatory on the grounds of nationality or sex. However, some claims relied on associative discrimination; i.e., those individuals did not have the relevant protected characteristic. For example, the scheduling changes allegedly:

• Put those who did not live in the UK (mainly non-British nationals) at a particular disadvantage compared to those who commuted from within the UK. However, some British nationals who lived abroad also allegedly suffered the same disadvantage.
• Put those with caring responsibilities (often women) at a particular disadvantage compared to those who did not. However, some men also allegedly suffered the same disadvantage.

The ET concluded that s.19 EqA must be interpreted to permit these associative indirect discrimination claims, pursuant to the Marleasing principle. 

BA appealed, broadly on the basis that the UK concept of indirect discrimination clearly required the claimant to share the protected characteristic of the group allegedly disadvantaged by the employer's PCP, and to ignore this would completely run against the grain of the EqA.

In addition, BA argued that the government's introduction of s.19A could not be seen as in some way supporting the claimants' claims. S.19A was seemingly introduced on the basis that the EU concept of associative indirect discrimination already applied in the UK, so s.19A simply preserved that position. However, this begged the question of whether that was correct. Indeed, if it was incorrect, it was arguable that the government did not lawfully have the power to introduce s.19A (by reference to various provisions in REULA).These arguments caused the Minster for Women and Equalities to participate in the case as the intervener, opposing BA's arguments.

EAT decision

The EAT rejected the appeal. 

The EAT concluded that the grain of the EqA is to harmonise discrimination law and strengthen the law to promote equality, as well as to apply to the EU definition of indirect discrimination (which included associative indirect discrimination). It also noted other examples of types of associative discrimination that had already become part of UK law. Taking all of this into account, it decided that s.19 EqA  can be interpreted as including associative indirect discrimination; this did not run against the identified grain of the legislation.

In summary, a complaint of indirect discrimination can be brought by a claimant who does not share the relevant protected characteristic. However they must still identify a disadvantage flowing from an employer's PCP that places people with a particular protected characteristic at a particular disadvantage, and must suffer that same disadvantage as a result of the PCP. 

Given this conclusion, it was not necessary for the EAT to make a decision on any of the arguments regarding the lawfulness of s.19A EqA.

We want to thank Eliza MacLachlan, Trainee Solicitor at Baker McKenzie, for her contribution to this alert.