The Equality Act 2010 which applies in England, Scotland and Wales provides employees with the right to bring a claim for indirect discrimination based on a protected characteristic (such as sex or race) where there is a provision, criterion or practice (PCP) (including a particular workplace policy) operated by the employer which places individuals with a particular protected characteristic at a substantial disadvantage compared to others that don’t have that particular protected characteristic. This is unless the employer can show the PCP is a proportionate means of achieving a legitimate aim.
A European judgment ruled that individuals bringing indirect discrimination claims are not required to have the relevant protected characteristic themselves, provided they were put at the same disadvantage as people who did have that protected characteristic. The Equality Act 2010 was amended with effect from January 2024 to reflect this.
A recent Employment Appeal Tribunal judgment that provided guidance on the law before the Equality Act was amended in January 2024, but that is equally important in understanding how the new amendment operates, involved an indirect discrimination claim brought by British Airways cabin crew. Their claims included claims of indirect discrimination arising from scheduling changes resulting from BA's restructuring exercise. They claimed that those scheduling changes were a PCP which put:
- Employees (predominantly non-British nationals) who lived abroad, and commuted to Heathrow from abroad, at a particular disadvantage compared to those who commuted from within the UK.
- Employees (predominantly women) with caring responsibilities at a particular disadvantage compared to those who did not have caring responsibilities.
Indirect discrimination claims were brought both by those who shared the relevant protected characteristic and also by those who did not but who suffered from the same disadvantage (including a male employee with caring responsibilities and a British national living abroad).
The Employment Appeal Tribunal found that, applying the European case law, individuals did not have to share the relevant protected characteristic if they suffered the same disadvantage.
Employers need to be mindful that indirect discrimination claims may now be brought by all disadvantaged employees, not just those with a particular protected characteristic. Unlike claims for direct discrimination, employers can defend claims of indirect discrimination on the basis that the employer’s requirement or policy is proportionate based on business needs.
For example, where a male employee is unable to work overtime because they have childcare responsibilities they would now be able to pursue a claim of indirect discrimination even though they do not have the relevant protected characteristic of being female. This is because the male employee in the same situation may suffer from the same “group disadvantage” of being unable to work certain hours as a result of childcaring responsibilities as female employees in this situation. However, an indirect discrimination claim will fail if the employer can show, based on the facts, that a particular requirement or policy, such as a requirement to work overtime, is a proportionate means of achieving a legitimate business aim.
As always, where there are genuine business reasons for a particular requirement and why flexible working or a request to work certain hours is not feasible, it is important to make sure these are properly evidenced and documented, so that decisions can be substantiated if challenged.
FSB members can find fact sheet guidance on unlawful discrimination on the FSB Legal and Business Hub and may also book a call with the FSB Legal advice line for advice on employees.