A person can claim indirect discrimination despite not having the protected characteristic themself, if the unjustified practice puts the claimant at substantively the same disadvantage as people with the protected characteristic. So someone without an EqA disability can potentially claim indirect disability discrimination.
Summary of s.19A Equality Act (EqA)
Briefly, “normal” indirect discrimination under s.19 EqA is where an employer or service provider etc applies a provision, criterion or practice (PCP) to people generally, but the PCP puts people with a protected characteristic (including the claimant) at a particular disadvantage. The employer etc has a defence if it shows that the PCP is a proportionate means of achieving a legitimate aim, known as “justification”. See Indirect discrimination.
S.19 says that the claimant must themself have the protected characteristic. S.19A EqA, however, now allows an indirect discrimination claim by someone who does not have the protected characteristic, but who is put at substantively the same disadvantage as the protected group.
Example: An employer does not allow a role to be done part-time, or as a job-share. Unless the employer can show this practice (PCP) is justified, a female worker can claim indirect discrimination under s.19 if the PCP puts women at a particular disadvantage (as women are more likely to be primary carers*) and the PCP puts the claimant at this disadvantage.
If a female carer could claim under s.19, a male worker who is a primary carer can claim under s.19A EqA – if (as seems likely) the PCP puts him at substantively the same disadvantage as women.
Note: Example based on Hardy & Hansons plc v Lax, 2005. There is a similar example in Indirect discrimination by association: An end to the confusion (at last) (cloisters.com), 2023.
*Whether a PCP puts women at a particular disadvantage in relation to caring responsibilities will depend on the evidence: Glover v Lacoste UK (bailii.org), 2023.
As regards disability discrimination:
- S.19A may allow an indirect discrimination claim by someone with an impairment which does not meet the EqA definition of disability. So if an employer may dispute that the person’s stammer, say, is a disability within the EqA, the person might include a claim under s.19A. This s.19A claim would be in addition to claims under the reasonable adjustment duty and s.15 EqA, for example, made because the claimant argues that their stammer is an EqA disability. Below: If claimant’s impairment is not a “disability” within EqA.
- S.19A may also allow claims by some people who have no impairment: below If claimant does not even have an impairment.
However, the usefulness of indirect discrimination, including s.19A, for disabled claimants is limited by it being easier for employers and service providers etc to show objective justification, compared with specific disability claims: separate page Justification defence for indirect discrimination is easier than for other disability claims.
Brief history
The wording of s.19 EqA says that a person claiming indirect discrimination must have the protected characteristic themself. However, in 2015 the EU court in CHEZ, below held that this is not required.
The Employment Appeal Tribunal (EAT) in Rollett, 2024, considered what effect this EU court decision had in British law. In a claim arising before January 2024 (when British courts had greater duties to follow EU law), the EAT held that s.19 EqA must be re-interpreted to comply with CHEZ. This meant that despite the wording of s.19, a person without the protected characteristic could claim if they were put at the same disadvantage as the protected group, at least in an employment claim. See below Before 1st January, 2024.
Rollett, although decided after the (Conservative) government passed regulations (below) which added s.19A to the EqA, fits with the then government’s view that s.19A, from the start of 2024, continues the position that applied before 2024. S.19A applies to discrimination which happens on or after 1st January 2024. S.19A says, broadly, that a person without the protected characteristic can claim if they are put at substantively the same disadvantage as the protected group. S.19A is not limited to employment claims.
So for employment claims, roughly the same position continues throughout. For discrimination which happened before January 2024, employment claims by people without the protected characteristic but who were at the same disadvantage were possible under s.19, re-interpreted under CHEZ. For discrimination since then, these claims (and also non-employment claims) are under s.19A.
Legal requirements
As regards disability, basically the legal requirements for a person (B) to have a claim under s.19A are that:
- the employer or service provider etc (A) applies a provision, criterion or practice (PCP) to B
- A also applies, or would apply, the PCP to (i) persons who have the same disability and (ii) persons who do not have that disability
- B does not have that disability
- the PCP puts, or would put, persons with that disability at a particular disadvantage when compared with persons who do not have it
- the PCP puts, or would put, B at substantively the same disadvantage as persons who do have that disability, and
- A cannot show the PCP is a proportionate means of achieving a legitimate aim.
“Same disability”
Read with s.16(3) EqA, the question under s.19A(1)(d) seems to be whether the PCP puts people with the “same disability” at a particular disadvantage, ie not disabled people generally. Similarly, the question under s.19A(1)(e) seems to be whether the PCP puts the claimant at substantively the same disadvantage as persons who do share that same disability. This should make it easier to fall within s.19A.
“Same disability” presumably excludes anything outside the EqA definition of “disability”. However, it is not clear what counts as the “same” disability. See Indirect discrimination>“Same” disability,
If claimant’s impairment is not a “disability” within EqA
S.19A seems to potentially allow a claim by a person who suffers substantively the same disadvantage as those with a particular disability, but does not themself have a disability within the EqA definition. Therefore, it may be prudent to add a claim under s.19A – as well as other types of EqA claim (such as reasonable adjustments, s.15, s.19) – in case the employer or service provider etc argues that the claimant’s stammer is not a disability as defined. (See below on a possible argument limiting s.19A claims based on disability: Argument that reasonable adjustment would have been made?)
Example: A person who stammers finds a voice recognition telephone system inaccessible, and claims indirect discrimination. The service provider argues that the claimant’s stammer does not meet the EqA definition of disability, so that there is no claim for reasonable adjustments and none under s.19. Even if the service provider were to succeed in that argument, the person who stammers should have a claim under s.19A if (broadly) the system puts at a disadvantage people whose stammer does fall within the EqA, and the system puts the claimant at substantively the same disadvantage – unless the service provider shows that the system is objectively justified (ie a proportionate means of achieving a legitimate aim).
Note: A person without an EqA disability cannot claim for failure to make reasonable adjustments within s.20 EqA: Discrimination by association>Does not apply to reasonable adjustments or discrimination arising from disability.
Example: Assessment criteria or practices in a university oral assessment disadvantage people who stammer, eg by taking fluency into account (University>Oral exams and assessed presentations, including adjustments). Even if the university succeeded in an argument that the claimant’s stammer was not a disability within the EqA, the student may have a claim under s.19A if the criteria or practice is unjustified. The claim would be on the basis that the student is put at substantively the same disadvantage as people whose stammer falls within the EqA.
As to some reasons why a stammer may not be a disability, so that one wants to rely on s.19A, see below Technical note: Some reasons why stammer may sometimes not be a disability within EqA.
Argument that reasonable adjustment would have been made?
Any claimant under s.19A will presumably need to identify the disability (see above as to “same disability”) that they are basing their claim on, even though the claimant does not themself have the disability. (The claimant may have a stammer, say, but is claiming under s.19A in case their stammer is not seen as a “disability” within the EqA). Among other things, the PCP must put persons with that disability at a particular disadvantage, and must put the claimant at substantively the same disadvantage.
S.19A(1)(b)(i) also requires that the employer or service provider etc applies, or would apply, the PCP to persons who have that disability. “Would apply” seems to mean that even if, for example, the employer doesn’t have a worker with that disability at the moment, if it did then it would apply the PCP.
Could an employer or service provider etc therefore escape liability under s.19A by arguing that for anyone whose impairment met the requirements to be an EqA disability, the employer etc would not have applied the PCP, because it would have made a reasonable adjustment?
This argument may well be raised in future cases. However, whether the argument is plausible will, I think, very much depend on the facts of the case. Also there may be legal issues for the courts to clarify – eg what if the employer would apply the PCP to some people with the disability but not all?
Often an employer or service provider etc may have difficulty raising this argument in practice. Whilst it will depend on the particular facts, it may well seem probable that the employer etc would in fact have applied the PCP to someone who had a disability of the relevant sort which fell within the EqA:
- The service provider in the voice recognition example above could not raise the argument, as it applies the PCP to all alike.
- Even where reasonable adjustments might potentially be made, an employer or service provider etc will often be arguing that there is a good reason for it to apply the PCP, and that it is not reasonable for it to make the relevant adjustment. (As well as s.19A, the claimant may themself be claiming for breach of the reasonable adjustment duty, arguing that they have a disability.) Justification of indirect discrimination and reasonableness of adjustments are different tests (Justification defence for indirect discrimination is easier than for other disability claims). Even so, this may cause an employer etc difficulties depending on the arguments they make.
- In a similar vein, at the time when the employer etc refused to disapply the PCP, it will probably have been far from clear whether the claimant had a disability within the EqA. This will only have been established by the tribunal. Again this may make it less plausible for the employer to argue it would have disapplied the PCP for someone with an EqA disability.
This possible argument against a s.19A claim should not apply anyway in respect of competence standards in university and professional exams, where the reasonable adjustment duty is legally excluded: Oral assessments at university: the rules>Reasonable adjustments: Exception for “competence standards” and Professional exam bodies>Technical note: What is a “competence standard”?
If claimant does not even have an impairment
S.19A might apply even if the claimant is not seeking to argue that they have a disability.
Example: A mother and her child are banned from a museum, because the child has difficulty moderating his voice due to his disability. Even though the mother is not disabled, she could have a claim under s.19A, because she experiences the same disadvantage (being banned) arising from the same PCP (a requirement of silence/low noise), unless the PCP is objectively justified. Presumably a claim could also be made on behalf of the child under s.19.
Note: Taken from an example in Indirect discrimination by association: An end to the confusion (at last) (cloisters.com). For another type of claim by a carer, that would probably not succeed, see the Follows case in Need to suffer same disadvantage below.
Example: A worker with a protected characteristic may be able to claim indirect discrimination under s.19 if their employer has a practice of failing to take sufficient action against harassment by third parties, such as customers or suppliers: Harassment of employees>Third-party harassment: Indirect discrimination?”.
This raises the possibility that a worker without a protected characteristic who suffers such harassment may also be able to claim, under s.19A: Harassment of employees>Third-party harassment: Indirect discrimination?”>Same disadvantage” indirect discrimination.
Example: In Wisbey v The Commissioner of the City of London Police and College of Policing (bailii.org), a male police officer successfully claimed indirect sex discrimination against a police force which imposed unjustified colour vision requirements for driving. These disadvantaged men because men are much more likely than women to have colour vision defects.
Presumably a woman who was unable to meet these colour vision requirements could claim under s.19A.
Note: The employer was liable even though it did not know that its requirements disadvantaged men: see Knowledge of disability in indirect discrimination.
The woman may or may not be arguing that her impaired colour vision is an EqA disability, but in any event this s.19A claim would be for sex rather than disability discrimination.
Example: If an employer requires applicants to pass a running test (like the police “bleep test” (joiningthepolice.co.uk)), a candidate who – just because they are not fit enough – is unable to run fast enough, or for the required length of time, may be able to claim under s.19A, if the employer cannot show the test is justified. Clearly such a test puts people with some disabilities at a particular disadvantage.
Note: Is a claimant who would be able to train to get fit enough at substantively the same disadvantage as those with a disability? That would be for the courts to consider.
Also this example is subject to the possible Argument that reasonable adjustment would have been made? – if on the evidence the employer would be willing to adjust the test for those with disabilities.
EU court decision in CHEZ
In CHEZ, the EU Court of Justice held that a person could claim indirect race discrimination even though she herself did not have the particular racial or ethnic background.
CHEZ v Komisia za zashtita ot diskriminatsia, EU Court of Justice, 2015
An electricity company placed electricity meters several metres high in districts inhabited mainly by persons of Roma origin. This was to prevent tampering etc, but also meant they were too high to read. The claimant was not Roma herself but lived in such a district. The EU court held she could claim for either direct or indirect race discrimination, even though she was not Roma.Note: In 2025 the EU court took a still broader approach on disability in Bervidi, below, which will probably not be followed in Great Britain.
From 1st January 2024, s.19A EqA expressly enacts this decision into British law, as discussed above. Also, the EAT in Rollett has held that before January 2024 s.19 should be re-interpreted to comply with CHEZ, below Before 1st January, 2024.
Before 1st January, 2024: same protection applies to employment claims
Even for discrimination occurring before 1st January 2024, it seems that in employment claims, a person without the protected characteristic can claim indirect discrimination under s.19, if they are put at the same disadvantage. The wording of s.19 EqA says the claimant must have the protected characteristic. However, the EAT has held that s.19 must be re-interpreted to comply with EU law:
British Airways v Rollett & others, Employment Appeal Tribunal, [2024] EAT 131
The EAT accepted that to comply with the EU court decision in CHEZ (above), s.19 EqA should be re-interpreted under the Marleasing principle, so as to allow claims for indirect discrimination by people who did not have the protected characteristic but were put at the same disadvantage.
The courts in Rollett (a claim arising before 2024) talked of the claimant being at the “same” disadvantage, whereas s.19A (from January 2024) says “substantively the same”. However, the courts may well not treat there as being any difference: British Airways v Rollett & others>Comment: “Same”, or “substantively the same”, disadvantage.
Because s.19A EqA takes effect from January 2024 (above), it does not matter that the re-interpretation of s.19 under Rollett is likely to be limited to pre-2024 discrimination: see Brexit: Effect of EU law when interpreting Equality Act, from 2024>Marleasing principle>From start of 2024.
Before 1st January, 2024: non-employment claims
For disability discrimination which happened before January 2024, British courts should re-interpret s.19 under the Rollett case probably only in employment claims. This is because the EU Framework Employment Directive with which s.19 was incompatible applies only in the field of employment and occupation.
From 1st January 2024, when claimants can rely on s.19A, claims are not limited to employment. At least in the disability field, therefore, s.19A extends the effect of CHEZ by applying it beyond employment. (The EU Race Directive 2000/43/EC is wider, eg it includes supply of goods and services to the public. So pre-2024 protection in Britain for people not of the relevant race, at least, should extend beyond employment.)
Need to suffer the same disadvantage
Courts will need to flesh out what it means to be put at substantively the same disadvantage under s.19A.
However, this requirement means the courts will almost certainly not follow:
Follows v Nationwide Building Society, Employment Tribunal, 2021
The tribunal, citing CHEZ, held that a worker caring for her disabled mother could claim indirect disability discrimination when asked to give up home-working. The tribunal allowed the claim even though it was the mother rather than the claimant who was disabled.
The situation in Follows was superficially similar to Coleman v EBR Attridge Law, where a mother was allowed to claim direct discrimination by association in respect of her child’s disability. However, as regards indirect discrimination, in CHEZ the claimant was subject to the same disadvantage as those with the protected characteristic of race (Roma ethnic origin). The claimant in Follows, caring for her disabled mother, seems not to have been put at the same disadvantage as disabled people to whom the employer applied the PCP (presumably disabled colleagues of the claimant). There are later employment tribunal decisions which disagreed with applying CHEZ to the situation in Follows (Indirect discrimination by association: An end to the confusion (at last) (cloisters.com). S.19A EqA now makes it even more unlikely that British courts would do so, particularly because it was never clear that the EU court meant CHEZ to go beyond claimants put at the same disadvantage.
Note that the claimant in Follows also succeeded in her claims for unfair dismissal, and for indirect sex discrimination on the basis that “more women than men are primarily responsible for caring responsibilities at home for elderly relatives”. She could still succeed in those two claims, if the claim were brought now.
The EU Court of Justice took a wider view of indirect discrimination in Bervidi, 2025, holding that a parent caring for a disabled child could claim indirect disability discrimination against her employer as regards working hours (so no need to be at the same disadvantage). However, in the light of Brexit and the explicit provisions of s.19A, it seems unlikely this case would be followed in Great Britain.
The EU Court of Justice has held that under the EU Framework Employment Directive, both indirect discrimination and the duty to make reasonable adjustments can apply in relation to someone else’s disability, at least as regards a parent seeking adjustments from her employer to care for her disabled child. This case is more likely to apply in Northern Ireland than in the rest of the UK. More: Bervidi case: reasonable adjustments for someone else’s disability.
As to the position of discrimination before 2024 (above), the courts in Rollett talked of the claimant being at the “same” disadvantage, whereas s.19A (from January 2024) says “substantively the same”. However, the courts may well not treat there as being any difference: British Airways v Rollett & others>Comment: “Same”, or “substantively the same”, disadvantage.
Knowledge under s.19A
For a claim under s.19, it seems to be no defence that the employer or service provider etc does not know of the disability or disadvantage: Knowledge of disability in indirect discrimination.
A claimant under s.19A would not have a disability (as defined in the EqA), so whether the employer or service provider etc knew of the claimant’s disability is not an issue.
As with s.19, s.19A does not contain a defence for an employer or service provider etc which did not know, and could not reasonably have been expected to know, that the PCP put people with the relevant disability at a particular disadvantage, and that the PCP put the claimant at substantively the same disadvantage. It seems likely that, similarly to s.19, lack of knowledge will not be a defence to an employer or service provider etc under s.19A.
Regulations inserting s.19A
S.19A, was inserted by regulation 3, Equality Act 2010 (Amendment) Regulations 2023, SI 2023/1425.
These regulations were evidently passed under s.12(8) REUL Act 2023, to “reproduce, to any extent, the effect that anything which was retained EU law by virtue of section 4 or 6(3) or (6) of European Union (Withdrawal) Act 2018 would have, but for [eg the abolition of the principle of supremacy of EU law]”. (See also s.13(3) below on removing anomalies etc.) In its Explanatory Memorandum for the SI 2023/1425, at §7.32, the government said that s.19A “reproduces interpretive effects of retained EU law to enable claimants without a relevant protected characteristic who suffer from a disadvantage together with persons with the protected characteristic as a result of a discriminatory PCP to continue to bring a claim.” More generally (at §2.1), “in the areas covered by this instrument [incl s.19A], the law will continue to have the same effect after the end of 2023 as it did before.”
The “interpretative effects” which the regulation seeks to reproduce were the re-interpretation of s.19 EqA to comply with the EU court decision in CHEZ above, under the Marleasing principle. The EAT later confirmed in British Airways v Rollett & others that previously s.19 should indeed be re-interpreted in that way: above Before 1st January 2024. The UK government considered that the Marleasing principle was abolished (with the abolition of supremacy of EU law) at the end of 2024 (Brexit: Effect of EU law when interpreting Equality Act, from 2024>Marleasing principle). This led to the need to specifically enact any effects of the Marleasing principle which the government wished to preserve.
S.13(3) REUL Act 2023 also allows regulations under s.12(8) to resolve ambiguities, remove doubts or anomalies, or facilitate improvement in the clarity or accessibility of the law. At §7.32 of its Explanatory Memorandum for the SI 2023/1425, the government says that its regulations adding s.19A do so.
The employer in British Airways v Rollett & others>EAT: S.19A accepted that the regulations inserting s.19A were valid (ie compliant with these provisions of the REUL Act 2023), given the EAT in that case decided that the legal position was much the same before 2024 as is set out in s.19A.
Before 2024, a CHEZ-compliant re-interpretation of s.19 as regards disability seems to have been limited to employment claims (above Before 1st January 2024). S.19A, on the other hand, applies to EqA claims generally, for example to claims against service providers and universities as well. Presumably this is to remove “anomolies” (s.13(3) REUL Act 2023 above). To follow the EU directives that previously applied, new EqA provisions would have needed to detail obscure differences in the scope of s.19A for different protected characteristics. As well as creating anomalies, that would be rather against the purpose of the EqA, which sought to largely unify the rules applying to different protected characteristics. It might also run counter to the aim of British law no longer having to follow EU law.
What to call this type of indirect discrimination
Indirect discrimination under CHEZ or s.19A is often called indirect discrimination “by association”, by analogy with direct discrimination or harassment “by association”, where someone without the protected characteristic is allowed to claim direct discrimination or harassment (Discrimination by association). However, a claimant for indirect discrimination under s.19A is typically not “associated” with anyone who has the protected characteristic. The claimant just suffers the same disadvantage.
Another suggestion is to call it discrimination “by ricochet”: Indirect discrimination by association: An end to the confusion (at last) (cloisters.com). This term was originally coined by the Advocate General in CHEZ, and encapsulates the idea that the claimant is a “secondary victim/collateral damage to discrimination which primarily affects another”.
For the time being, though, I’m going with the suggestion of the EAT in Rollett at §5, to call it “same disadvantage” indirect discrimination. This, or without quotes same disadvantage indirect discrimination, seems to me a relatively simple, self-explanatory, and helpful phrase which may stick.
Also the EHRC Sexual harassment and harassment at work: technical guidance (2024 update), from para 3.74, calls it initially ‘same disadvantage’ indirect discrimination, then (without quotes) same disadvantage indirect discrimination.
Technical note: Some reasons why stammer may sometimes not be a disability within EqA
This note supplements If claimant’s impairment is not a “disability” within EqA, above, which discusses how s.19A seems to potentially allow a claim by a person who suffers substantively the same disadvantage as those with a particular disability, but whose impairment is not a “disability” within the EqA definition. For example, a person whose stammer is not a disability within the EqA may be able to claim if they suffer substantively the same disadvantage as people whose stammer is a disability within the EqA.
A court might refuse to accept that the stammer is a disability because the court considers the activities in which the stammer has a more than minor or trivial effect are not normal day-to-day. This is less likely to be relevant in an employment claim (including a claim against a professional exam body), where “normal day-to-day activities” include most work-related activities: Disability: ‘Normal day-to-day activities’>EU law: ‘normal day-to-day activity’ is very wide in employment claims. This wider definition of disability in employment claims should make it more likely that a disadvantage caused by a workplace PCP means the stammer (or other impairment) has the required substantial effect on normal day-to-day activities.
A court might also refuse to accept that the stammer is a disability within the EqA if the stammer has only very recently started, and there is not sufficient evidence that (as at the time of the discrimination) its substantial effect on normal day-to-day activities “may well” last 12 months, so as to be “long-term”. This issue of whether the effect is “long-term” more commonly applies to mental health conditions like depression or stress, where quite often a tribunal is not satisfied that the effect is long-term. Again, the person may be able to claim under s.19A if the PCP puts them at substantively the same disadvantage as people with a particular disability such as a stammer or depression (the effect of which is long-term), even though the tribunal finds the claimant not to have a disability within the EqA definition.
