This case has broad implications for how indirect discrimination is interpreted in UK employment law.
It reinforces that employees who face the same disadvantage as a protected group can bring claims of indirect discrimination, even if they do not personally belong to that group. This expands the risk landscape for employers and highlights the importance of assessing the impact of policies on the wider workforce.
Background
In the aftermath of the COVID-19 pandemic, British Airways plc implemented a restructuring programme that introduced new scheduling practices for its Heathrow based cabin crew. A group of 49 employees, including Mr. Rollett, challenged these changes, alleging they led to indirect discrimination. The claimants argued that the new schedules disproportionately affected:
- Non-British Nationals: Employees commuting from abroad faced greater challenges, suggesting indirect race discrimination.
- Employees with Caring Responsibilities: Predominantly women, these employees contended the schedules adversely impacted them, indicating indirect sex discrimination.
Notably, some claimants did not share the protected characteristics of the disadvantaged groups but claimed they suffered the same disadvantages. For instance, a British national residing in France faced similar commuting issues as non British nationals, and a male employee with caring responsibilities experienced challenges akin to his female counterparts.
Allegations:
- Indirect Race Discrimination – the scheduling changes were claimed to disproportionately disadvantage non-British nationals commuting from abroad.
- Indirect Sex Discrimination – the new practices allegedly placed employees with caring responsibilities, primarily women, at a particular disadvantage.
- Same Disadvantage Claims – claimants without the specific protected characteristics argued they faced the same disadvantages as the affected groups.
Tribunal Findings
Employment Tribunal (ET): The ET determined it had jurisdiction to hear indirect discrimination claims from individuals who, despite not sharing the protected characteristic, suffered the same disadvantage as the affected group. This interpretation aligned with the European Court of Justice decision in CHEZ Razpredelenie Bulgaria AD v. Komisia za zashtita ot diskriminatsia, which allowed such claims under EU law.
Employment Appeal Tribunal (EAT): British Airways appealed, contending that only those sharing the protected characteristic should be permitted to claim indirect discrimination.
The EAT dismissed the appeal, upholding the ET’s decision. It concluded that, consistent with EU law and the Equality Act 2010 purpose, claimants experiencing the same disadvantage could pursue indirect discrimination claims, regardless of whether they shared the protected characteristic.
HR Key Takeaways
Indirect discrimination risks are not limited to employees in protected groups, and employers need to realise that policies can unintentionally disadvantage anyone.
Assuming a policy is fair just because it does not explicitly target a protected characteristic is a risky game. Discrimination claims do not come with a checklist of usual suspects and legal trouble can just as easily come from an overlooked group as from those typically covered by workplace protections.
Before introducing new policies, HR must carry out proper impact assessments. This is not a tick box exercise or an excuse to hold yet another meeting. It means engaging with employees, gathering feedback, and using data to predict actual real world effects.
If a policy disproportionately affects certain groups, even unintentionally, ignoring it will not make the problem go away. It just makes it more likely to resurface in the form of a legal challenge.
Employers must also be ready to justify policy decisions with solid business reasoning. If a policy puts some employees at a disadvantage, there needs to be a clear, proportionate operational need behind it. Having this justification documented before a dispute arises is far easier than scrambling for a defence if and when a claim lands on HR’s desk.
Discrimination claims require a flexible approach. It is not just about who is disadvantaged but how that disadvantage plays out across different employee groups.
Keeping up with case law and the ever-evolving interpretations of indirect discrimination is not just good practice. It is the difference between proactively managing risk and hoping for the best.
The lesson here is simple. Employers should not assume they know who might be affected by a policy change. Taking a broader view of fairness and inclusion makes for better policies, a more engaged workforce, and fewer awkward conversations with legal counsel.
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