The Employment Appeal Tribunal (EAT) has confirmed that where a provision, criterion or practice (PCP) puts people with a protected characteristic at a disadvantage, protection from indirect discrimination under Section 19 of the Equality Act 2010 can extend to those who do not have the protected characteristic but suffer the same disadvantage.
After an airline undertook a restructuring exercise, a number of its staff brought indirect discrimination claims. They alleged that scheduling changes disadvantaged employees who commuted from abroad, who were predominantly non-British nationals, and employees with caring responsibilities, who were predominantly women. The Employment Tribunal (ET) had to consider whether it had jurisdiction to hear claims brought by those who did not have the relevant protected characteristics, but who had suffered the same disadvantage as those who did.
It was common ground that the CJEU’s decision in CHEZ Razpredelenie Bulgaria AD v Komisia za zashita ot discriminatsia meant that indirect discrimination protection extended to those who did not share the same protected characteristic as the disadvantaged group. It was also agreed that Section 19, as written, did not afford such protection. The question before the ET was whether Section 19 could be interpreted in accordance with CHEZ by reading particular words into it.
The ET found that found that interpreting Section 19 in this way would not go against the grain of the Act, nor change or remove its core meaning. It would be, at most, an extension of an existing scheme rather than a wholly different one. The ET therefore had jurisdiction to hear the claims.
The airline appealed on the grounds that the ET had erred in law. It pointed to the recently introduced Section 19A of the Act, which codified CHEZ into domestic law, as suggesting that Section 19 could not be interpreted to provide such protection. It contended that the ET’s interpretation created an entirely new right.
The EAT noted that, in providing protection against other forms of discrimination, the Act allows claims to be brought by those who are discriminated against because of a protected characteristic, even if they themselves do not possess the characteristic in question. Although a PCP must put people with a protected characteristic at a disadvantage in order for protection from indirect discrimination to apply, the causal link required is between the PCP and the disadvantage, not the protected characteristic.
The EAT considered that the ET’s construction of Section 19 was entirely consistent with a statute that sought to harmonise discrimination law. The airline’s appeal was dismissed.