The Employment Appeal Tribunal accepted that under the EU court decision in CHEZ, s.19 Equality Act (EqA) should be re-interpreted to allow claims for indirect discrimination by people who did not have the protected characteristic but suffered the same disadvantage. For claims arising after 2023, this is in any event allowed by s.19A EqA.
2024, Employment Appeal Tribunal. [2024] EAT 131. Full decision www.bailii.org/uk/cases/UKEAT/2024/131.html
Summary and brief comment
Indirect discrimination
Briefly, indirect discrimination (s.19 EqA) is where an employer applies a provision, criterion or practice (PCP) to people generally, but the PCP puts people with a protected characteristic (eg race, sex, disability) at a particular disadvantage. The employer has a defence if it shows that the PCP is a proportionate means of achieving a legitimate aim (justification). See Indirect discrimination.
At the time this case arose, the EqA said that a person claiming for indirect discrimination must themself have the protected characteristic. For discrimination from January 2024, the EqA has been amended to comply with an EU court decision (below Comment: Before and after 1st January 2024).
Facts
This was a claim by Heathrow-based cabin crew of British Airways (BA). The cabin crew argued that scheduling changes by BA were indirect discrimination. For example, they argued that the changes:
- put those (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, and so that there was indirect race discrimination. (“Race” includes “nationality”: s.9(1) EqA.) This claim was made not only by non-British nationals, but also for example by a British national who lived in France and complained of being put at the same disadvantage as non-British nationals commuting to the UK from abroad;
- put those (predominantly women) with caring responsibilities at a particular disadvantage compared with those who did not have caring responsibilities, so that there was indirect sex discrimination. As well as women, this was claimed by one or more men with caring responsibilities. They complained they were put at the same disadvantage as women with caring responsibilities.
[Technical point on the wording of that: below Comment: Note on description of indirect discrimination claims.]
Decision
The employment tribunal (ET) – upheld by the Employment Appeal Tribunal (EAT) – held that even claimants who did not have the protected characteristic could claim indirect discrimination under s.19 EqA, if they were put at the same disadvantage. This was despite the fact that the wording of s.19 said the claimant must have the protected characteristic.
The EU court in CHEZ had held that indirect discrimination can extend to claimants who do not have the same protected characteristic as the disadvantaged group. The Marleasing principle required the courts to re-interpret British legislation to comply with EU law, even departing from the wording of the legislation, if (broadly) the re-interpretation was not against the grain of the British legislation. The EAT upheld the ET decision that s.19 EqA could and should be re-interpreted in this way.
Brief comment: S.19A EqA replaces this case from January 2024
For discrimination which happens after 31st December 2023, regulations have now added a new s.19A EqA. This expressly allows indirect discrimination claims by people without the protected characteristic, if the PCP puts them at substantively the same disadvantage as people with the protected characteristic: “Same disadvantage” indirect discrimination (s.19A).
So although the re-interpretation of s.19 under this EAT decision may only apply to discrimination which happened before the end of 2023, claimants without the protected characteristic who are put at the same disadvantage can now claim under s.19A. See further below Comment: Before and after 1st January 2024.
Employment Appeal Tribunal (EAT) decision, in more detail
The employer BA argued that the ET’s re-interpretation of s.19 EqA went beyond the limits of how far a court can re-interpret a statute, under the Marleasing principle. The limits of the Marleasing principle have been expressed in different ways (see that link). BA argued that re-interpreting s.19 “goes against the grain of the legislation and/or infringes a cardinal principle and or creates a wholly different scheme”.
Subject to those limits, it was not disputed that the Marleasing principle applied in this case, despite Brexit: below EAT: Undisputed that Marleasing principle still applied in this case.
The EAT upheld the ET decision. The ET’s re-interpretation went with the grain of the EqA. Within the overall scheme of the EqA, the place of protection against indirect discrimination was to remove rules and practices which were not directed at or against people with a particular protected characteristic but had the effect of putting them at a disadvantage, and to thus level the playing field. [§56, 61]
The requirement that there be a demonstrable disadvantage to a group which shares a particular protected characteristic is undoubtedly a fundamental feature of s.19 EqA, said the EAT. But that continues to be a requirement under the ET’s re-interpretation. [§62]
Nor was it “repugnant” to the legislative purpose that claims could be brought without there being any claimant who shares the protected characteristic. There may be few if any employees with the protected characteristic able or willing to pursue a claim. A successful complaint by someone without the protected characteristic – like one by a person with the characteristic – is likely to achieve the desired equality of result. If, for example, there is an unjustified minimum height condition (indirect sex discrimination, as it disadvantages women more), a claim is likely to lead to the removal of the condition to the benefit of both (shorter) female and male colleagues. [§63]
EAT: Undisputed that Marleasing principle still applied in this case
The EAT said:
25. Following the UK’s departure from the EU, the application of EU law in this jurisdiction was initially governed by the European Union (Withdrawal Act) 2018 (“EUWA”), which preserved aspects of EU law in domestic law. With effect from 1 January 2024, the EUWA has been superseded by the Retained EU Law (Revocation and Reform) Act 2023 (“REULA”), but, claims in the present proceedings having been presented in or around January 2021, it is agreed that the issues raised by this appeal are to be determined under the provisions of the EUWA. Moreover, it is common ground that, pursuant to the provisions of the EUWA, the Marleasing principle remained part of domestic law, to be applied by the ET in this case.
EAT: S.19A was not invalid
BA argued that if, before 1st January 2024, s.19 could not be read so as to conform with CHEZ, the government regulation inserting s.19A into the EqA was ultra vires, ie not permitted by the provision in REUL Act 2023 which authorises the government to make regulations. [§43]
However, BA accepted that if (as the EAT had concluded) before January 2024 s.19 was to be read so as to conform with CHEZ, the introduction of s.19A was not ultra vires, ie it was lawful. [§65]
My comments
Comment: Before and after 1st January 2024
To summarise: The re-interpretation of s.19 EqA in this case may well not apply to discrimination which happens after the end of 2023. However, from January 2024 a new s.19A EqA achieves the same effect: “Same disadvantage” indirect discrimination (s.19A). In more detail:
Until the end of 2023
The Marleasing principle required the courts to re-interpret British legislation to comply with EU law, even departing from the statutory wording – unless (broadly) the re-interpretation went against the grain of the British legislation. The courts in the present case held that under the Marleasing principle, s.19 EqA should be re-interpreted to conform with the EU court decision in CHEZ. Therefore a claimant for indirect discrimination under s.19 need not have the relevant protected characteristic if they are put at the same disadvantage.
From start of 2024
However, for discrimination which happens after 31st December 2023, when the principle of supremacy of EU law was abolished, the Marleasing principle may well no longer apply: see Brexit: Effect of EU law when interpreting Equality Act, from 2024>Marleasing principle>From start of 2024. The Conservative government’s view was that the Marleasing principle no longer applied from that date.
If this is right, the interpretation of s.19 in the present case (ie so as to include claimants who do not have the protected characteristic) only applies for discrimination which happened before the end of 2023.
However, the UK government wanted to continue this CHEZ-compliant position after the end of 2023. The government therefore passed regulations which have added a new s.19A EqA, for discrimination which happens on or after 1st January 2024. S.19A expressly allows indirect discrimination claims by people without the protected characteristic, if the PCP puts them at substantively the same disadvantage: “Same disadvantage” indirect discrimination (s.19A).
So for discrimination happening after the end of 2023, claims by people without the protected characteristic should be under s.19A rather than s.19.
Comment: May be only a decision in principle
I haven’t seen the ET decision, but it may well not yet have been decided whether the scheduling changes put non-British nationals and women at the disadvantages they allege. It might then have to be decided whether the British nationals and men were put at the same disadvantage.
Also the employer BA would have a defence if it shows the changes were a proportionate means of achieving a legitimate aim (justification).
Comment: Disability claim
It would be interesting to know more about a disability claim mentioned by the EAT at [§6]. The EAT says:
6. … I further record that those acting for the claimants have identified that the claims also include complaints of associative indirect disability discrimination, although the respondent [BA] disputes that any such claims have been advanced on a “same disadvantage” basis (that is, as contended in respect of the complaints of indirect race and/or sex discrimination). The claimants say this is a matter still to be resolved. It is, in any event, not a dispute I can determine at this stage, and the arguments advanced on the appeal have focused on the claims of indirect race and sex discrimination.
Comment: “Same”, or “substantively the same”, disadvantage
The courts in this case talk of the claimant with the protected characteristic being put at “the same” disadvantage as people with the characteristic. S.19A (effective from the start of 2024) says “substantively” the same disadvantage. The EAT did not discuss this difference, and it may well be unimportant. If the point were seen as relevant in a case involving pre-2024 discrimination, s.19A would be persuasive (though not conclusive) in arguing that a broad view should be taken of what disadvantage is the “same” when re-interpreting s.19.
The regulations inserting s.19A EqA (SI 2023/1425) were evidently passed under s.12(8) REUL Act 2023. S.13(3) allows such regulations to resolve ambiguities, remove doubts or anomalies, or facilitate improvement in the clarity or accessibility of the law. The government may have been concerned that if s.19A just said “the same” disadvantage, lawyers would try to point to small points of difference which sensibly shouldn’t matter, and which would be unlikely to be seen as relevant under EU law. At §7.32 of its Explanatory Memorandum for the SI 2023/1425, the government says as regards s.19A that “the regulation resolves ambiguities, removes doubts and anomalies and facilitates improvement in the clarity and accessibility of the law.”
Unsurprisingly (in view of s.13(3)), BA did not seek to argue that the regulations inserting s.19A – including the word “substantively” – were invalid if the EAT accepted (as it did) that up to the end of 2023 claimants without the protected characteristic could claim under the Marleasing principle: above EAT: S.19A was not invalid.
See too “Same disadvantage” indirect discrimination (s.19A)>Regulations inserting s.19A.
Comment: Claim arose when UK still bound by EU law?
The ET claims in this case were lodged in or around January 2021 [§5, 25]. It is therefore likely that the claims arose before the end of 2023, during the Brexit implementation period when the UK was still largely bound by EU law, and the European Communities Act 1972 (subject to adaptations) was saved by s.1A EU (Withdrawal) Act 2018: Brexit, EU law and disability discrimination under Equality Act 2010>Up to 31st December 2020 – EU law continued.
Even so, the EAT said it was agreed that the issues raised by this appeal were to be determined under the provisions of the EU (Withdrawal Act) 2018 [§25]. Especially as the EAT mentioned that the REUL Act 2023 did not apply here, the EAT probably meant the 2018 Act as it had effect after the end of 2020 (ie not s.1A), which would be consistent with the majority view of the Supreme Court in Lipton v BA Cityflier. As discussed at that link, according to the majority view, a higher court in Britain would be entitled to depart from the EU court decision in CHEZ even for a claim which arose before Brexit. However, the EAT is not a higher court; the Court of Appeal and Supreme Court are higher courts. In any event, even if the case gets to a higher court, it would be weird (and unlikely) for a higher court to depart from CHEZ for pre-2024 claims, given that the UK government has chosen to implement CHEZ in s.19A EqA for claims arising from January 2024.
Comment: Marleasing principle accepted as applying
It is interesting that it was not disputed that the Marleasing principle applied, even after Brexit (Archive: Effect of EU law when interpreting Equality Act, 2021 to 2023>Marleasing principle: interpreting the Equality Act to conform with the directive.) The dispute in the EAT was only on whether this re-interpretation was within the limits of the principle, eg whether it went “against the grain” of the EqA.
Comment: Note on description of indirect discrimination claims
In the Facts above, I’ve roughly followed wording of the EAT decision. However, I think it would be more accurate under s.19(2)(b) EqA to say that BA’s scheduling changes were claimed to:
- put non-British nationals at a particular disadvantage compared with British nationals, as it was predominantly non-British nationals who lived abroad and commuted to Heathrow from abroad, rather than commuting from within the UK; and
- put women at a particular disadvantage compared with men, as it was predominantly women who had caring responsibilities.
Link
External link
- President Eady dismisses British Airways’ appeal at the Employment Appeal Tribunal (tmpsol.com), 15 August, 2024, by the solicitors acting for one of the claimants.
