Sean Garmory is a Solicitor at specialist employment law firm, Collingwood Legal. Sean considers a recent development impacting the law of indirect discrimination.
Background
Indirect discrimination claims under section 19 of the Equality Act 2010 (“EqA 2010”) requires a claimant to establish that a provision, criterion or practice (“PCP”) implemented by their employer (that is applied equally to employees) places or would place employees with the claimant’s protected characteristic at a particular disadvantage. An employer has a statutory defence to objectively justify the PCP as a proportionate means of achieving a legitimate aim.
This represents the common understanding of an indirect discrimination claim. However, the position on this type of claim has developed because of the introduction of a new section 19A of EqA 2010.
Section 19A
A strict reading of section 19 of EqA 2010 indicates that a claimant must show that the disadvantage they allege would put other employees who share this protected characteristic at the same particular disadvantage. However, this was not a requirement set out in the EU directives which predated this legislation. Indeed, case law from the Court of Justice of the European Union has held that a claimant can establish indirect discrimination even if they do not share the protected characteristic of the disadvantaged group, as long as they can show that they have been disadvantaged in the same way.
This has now been reflected in domestic legislation in the form of Regulation 3 of The Equality Act 2010 (Amendment) Regulations 2023 which inserts a new section 19A to EqA 2010 which enables claimants without a relevant protected characteristic to continue to bring claims of indirect discrimination where they can show that they have been disadvantaged in substantively the same way as the disadvantaged group.
This change in the domestic law reflects the recent decisions of our own courts. Recently, the decision in British Airways plc v Rollett and others has confirmed that, despite the above strict reading, section 19 had to be read in a way which is compatible with EU law. In this case, it was alleged that scheduling changes placed non-British nationals who commuted from other countries and women with caring responsibilities at a disadvantage. The decision of the Employment Appeal Tribunal confirmed that British nationals who shared the same disadvantage as non-British nationals and men with caring responsibilities who shared the same disadvantage as women could both bring indirect discrimination claims. This is now the position reflected in section 19A EqA 2010.
What does this mean?
Codification of this interpretation of the law increases the avenues for employees to bring legal complaints about an employer’s policies. The example below illustrates the circumstances that could lead to a claim under section 19A EqA 2010:
A male employee on paternity leave putting in a request for flexible working to reduce their hours for childcare but is rejected due to “company policy” that all employees are required to work full time. It has been judicially accepted that women are statistically more likely to have childcare responsibilities than men, but this employee could now bring a claim for indirect sex discrimination, even though the employee is male rather than female as he is “suffering alongside” the disadvantaged group of female employees in terms of the impact of this policy.
As a result, employers will now need to consider the impact of their PCPs not just on employees, or potential employees, who would be placed at a disadvantage due to their protected characteristics but on other employees who could be put to the same disadvantage unrelated to any protected characteristic. Simply, policies which disadvantage groups of employees are now more likely to be subject to challenge.
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