British Airways plc v Rollett and others [2024] EAT 131

In brief

The EAT held that a claimant can bring an indirect discrimination claim under s.19 EA2010 even where they do not personally possess the relevant protected characteristic, provided the provision, criterion or practice (PCP) puts them at the same disadvantage as the group that does share that characteristic. This opens a 'same disadvantage' route to indirect discrimination — a person excluded by a PCP that disproportionately affects a protected group can challenge it even if they are not a member of that group. British Airways plc was the appellant; the respondents were Heathrow cabin crew whose claims arose from scheduling changes in a post-pandemic restructuring [4]–[5], and the appeal concerned their claims of indirect race (nationality) and sex discrimination [6]. CHEZ applies across the EU equality directives [50], and s.19 aims at uniformity of protection across all the protected characteristics [53]; gender reassignment was not in issue.

Key provisions

• holding-1 — s.19 EA2010 indirect discrimination claims can be brought by claimants who do not share the relevant protected characteristic : Section 19 EA2010 indirect discrimination claims can be brought by claimants who do not personally share the relevant protected characteristic, provided they suffer the same disadvantage as the affected group.
• holding-2 — The 'same disadvantage' test: the claimant must show the PCP puts them at the same disadvantage as the group sharing the protected characteristic : The "same disadvantage" test: the claimant must show the PCP puts them at the same disadvantage as the group sharing the protected characteristic.
• holding-3 — An extension of s.19 beyond its language, required by a conforming interpretation, and limited to cases of shared group disadvantage : The EAT accepted that this is "an extension of the protection beyond that envisaged by language of section 19" [60], upheld as a conforming interpretation following CHEZ [50], and available only where group disadvantage by reference to a protected characteristic is established and the claimant shares the same particular disadvantage from the PCP [62].
• Applies across all protected characteristics — not limited to sex : CHEZ applies across the EU equality directives [50], and s.19 aims at uniformity of protection across all the protected characteristics [53], so the reasoning is not confined to the race and sex claims argued on the appeal [6]. Gender reassignment was not in issue.

When relevant

Indirect discrimination analysis, policy review, and EqIA assessment. Relevant when organisations apply a blanket PCP (e.g. uniform rules, facilities rules, eligibility criteria) that disadvantages people who share a protected characteristic — Rollett means individuals outside that group who suffer the same disadvantage can also challenge the PCP. Particularly relevant to proportionality assessments where the pool of affected individuals is broader than the protected group itself.