British Airways PLC v B Rollett & Ors

Section 19 of the Equality Act 2010 had to be interpreted, under the applicable EU-law conforming interpretative obligation, so as to cover a claimant who did not share the protected characteristic of the disadvantaged group. The claimant must nevertheless suffer the same particular disadvantage caused by the employer’s provision, criterion or practice.

That interpretation extended the statutory protection but went with the grain and equality-promoting purpose of the Act. It did not remove the fundamental requirement for group disadvantage affecting persons with a protected characteristic, nor the causal connection between the PCP and the claimant’s disadvantage.

The respondents were Heathrow-based cabin crew employed by British Airways plc. They alleged that scheduling changes introduced following a restructuring exercise were indirectly discriminatory. The claims included complaints by British nationals commuting from abroad and by men with caring responsibilities, who said that they suffered the same disadvantage as, respectively, non-British nationals and women.

At a preliminary hearing, the Reading Employment Tribunal held that it had jurisdiction under section 19 of the Equality Act 2010 to determine such claims. British Airways appealed. The central issue was whether the Tribunal could interpret section 19 consistently with CHEZ, notwithstanding its wording requiring the claimant to share the protected characteristic of the disadvantaged group.

1. Appeal dismissed. The Employment Tribunal made no error of law. For claims presented while the EU-law conforming interpretative obligation applied, section 19 of the Equality Act 2010 must be read to permit a same-disadvantage claim.

2. The applicable interpretation permits a claim where an employer applies a PCP which puts persons sharing a protected characteristic at a particular disadvantage, and the claimant also suffers that particular disadvantage. The claimant need not share the protected characteristic.

3. The interpretation was required, so far as possible, by the Marleasing principle. The boundary is between interpretation and amendment: an interpretation cannot be inconsistent with a fundamental or cardinal feature of the legislation, or turn its scheme inside out. It may, however, depart from unambiguous statutory language and imply necessary words where it remains compatible with the legislation’s underlying thrust.

4. The construction extended section 19 beyond Parliament’s original wording, but was consistent with the Act’s purposes of harmonising discrimination law and advancing equality. Section 19 was intended to give effect to the EU definition of indirect discrimination. The Act elsewhere protects persons affected because of a protected characteristic even where they do not possess it.

5. Group disadvantage to persons sharing a protected characteristic remains a fundamental feature of section 19. So too does the requirement of correspondence, and a causal link, between the PCP and the individual claimant’s disadvantage. The construction does not require a claimant from the protected group to bring proceedings. A successful same-disadvantage claim may remove an unjustified PCP for all affected workers.

6. It was unnecessary to determine the vires of section 19A of the Equality Act 2010. The parties were directed to provide agreed wording, or written representations, on any further definition thought necessary.

• Employment Appeal Tribunal: dismissed British Airways plc’s appeal in [2024] EAT 131.
• Employment Tribunal, Reading: at a preliminary hearing held on 14 and 15 December 2022, with judgment sent on 20 January 2023, held that it had jurisdiction to consider same-disadvantage indirect discrimination claims under section 19 of the Equality Act 2010.