Legal Explainer
President Eady dismisses British Airways appeal confirming that the Employment Tribunal made no error of law in concluding that it had jurisdiction to consider indirect discrimination claims under section 19 of Equality Act 2010, where there is PCP applied by an employer that puts people with a particular characteristic at a disadvantage, where the claimant in such a case must also suffer that disadvantage, but where the claimant need not have the same protected characteristic as the disadvantaged group.
We represent Ms Olivia Kerr, a former Heathrow-based British Airways cabin crew member who was dismissed during a restructuring exercise carried out by British Airways during the height of the 2020 coronavirus pandemic. Ms Olivia Kerr lodged an ET claim in January 2021, bringing different claims, including this indirect discrimination claim under section 19 of the Equality Act arising from new scheduling changes brought about by the British Airways restructuring exercise. It is alleged that the new scheduling changes in question put those (predominantly non-British nationals) living in Spain and Italy, for example, who commuted to Heathrow from abroad, at a particular disadvantage compared to those who commuted from within the UK and/or put those (predominantly women) with care and responsibilities at a particular disadvantage compared with those who did not have caring responsibilities.
Ms Olivia Kerr is a British national who lives in and commutes from Chamonix, France. Although she does not share the protected characteristic of ‘non-British nationality’, she complains of being put at the same disadvantage as non-British nationals commuting to the UK from abroad.
Another former Heathrow-based cabin crew member, Fabio Pettinella, a man with caring responsibilities, does not share the protected characteristic of being female, but he complains of being put at the same disadvantage as women with caring responsibilities.
President Eady considered the legal framework in the context of indirect discrimination and noted Lady Hale’s opening comment in Essop and others v Home Office (UK Border Agency) and Naeem v Secretary of State for Justice (with whom other members of the Supreme Court agreed):
“… Ideally, discrimination ought to be an easy concept, although proving it may be harder. We do not live in an ideal world and the concepts are not easy, ….The Law prohibits two main kinds of discrimination – direct and indirect. Direct discrimination is comparatively simple: It is treating one person less favourably than you would treat another person because of a particular protected characteristic that the former has. Indirect discrimination, however is not so simple. It is meant to avoid rules and practises which are not directed at or against people with a particular protected characteristic but have the effect of putting them at a disadvantage. It is one form of trying to “level the playing field”.”
Following a ruling in the Court of Justice of the EU in a case referred to as CHEZ, the Employment Tribunal deciding whether the claimants had jurisdiction to bring these extended indirect discrimination claims to those who did not share the same protected characteristic as the disadvantaged group ruled that CHEZ said that indirect discrimination under what is now the Equal Treatment Directive extended to those who did not share the same protected characteristic as the disadvantaged group. British Airways appealed on the ground that the wording of section 19 Equality Act should be interpreted to dispense with the requirement that a claimant needed to have the same protected characteristic as the disadvantaged group. British Airways argued that this created an entirely new category of Claimant who had not been directly discriminated against and is not part of a group that was potentially indirectly discriminated against by the application of an apparently neutral PCP.
Dismissing the appeal, President Eady said that the place of protection against Indirect discrimination is to remove “rules and practices which are not directed at or against people with a particular protected characteristic but have the effect of putting them at a disadvantage” and thus to “level the playing field”. President Eady said that the extension to that protection arising from the Employment Tribunal’s construction of section 19 could not be said to go against the grain of the legislation. On the contrary, it seemed to President Eady to be entirely consistent with a statute that seeks to harmonise discrimination law and strengthen it to support progress on equality. It is consistent with the legislative purpose of ensuring that the EU definition of indirect discrimination, as explained in CHEZ, is applied in domestic legislation. President Eady also found it wrong for British Airways to suggest that the Employment Tribunal’s interpretation is incompatible with a fundamental feature of the legislation, namely that a complaint of indirect discrimination must be brought by a claimant who shares the protected characteristic of the group. President Eady found that there was no express exception to this effect.
As an aside, the Minister for Women and Equalities intervened in the appeal because British Airways contended that if the appeal was allowed, the new section 19A Equality Act introduced under the
Equality Act 2010 (Amendment) Regulations 2023 would be ultra vires. Detailed submissions were made on this point, but President Eady did not need to address any argument as to the vires of section 19A EqA because she found that section 19 EqA was to be read to conform to the principles of CHEZ. The introduction of 19A could not be said to be vires.
Read the Judgment here.
We want to thank the Equality Human Rights Commission for supporting this appeal. Without such funding, this important appeal may not have been heard. We also want to thank our barristers, Martina Murphy and Jessica Franklin, who did a great job ensuring that these important legal issues were incorporated into the Equality Act 2010.