Understanding Rollett v British Airways: Same Disadvantage

Rollett v British Airways & Others is a 2024 Employment Appeal Tribunal decision about who can bring an indirect discrimination claim.

The Employment Appeal Tribunal held that someone can bring an indirect discrimination claim even if they do not personally have the protected characteristic in question — as long as the rule they are complaining about leaves them worse off in the same way it leaves that group worse off.

For organisations, the practical significance is immediate. A blanket rule no longer has to disadvantage only the protected group to be challenged. Anyone caught by the same disadvantage may be able to bring a claim, whether or not they share the characteristic themselves. That widens the pool of people who can challenge a single badly designed policy, and it is a sharp reason to prefer case-by-case, evidenced decisions over blanket facilities, uniform or eligibility rules.

A note on wording. The Equality Act calls a rule a “provision, criterion or practice”, usually shortened to PCP — it covers any rule, requirement, policy or way of doing things, whether written down or just how it is done round here. And a PCP is lawful, even where it disadvantages a protected group, if the organisation can show it is a proportionate means of achieving a legitimate aim — a real reason, and no heavier a rule than that reason needs. Lawyers call that objective justification. This page mostly just says “the rule” and “a good enough reason”.

What was Rollett actually about?

The case was an indirect discrimination claim against the airline. What reached the Employment Appeal Tribunal was less about the facts of the dispute than a threshold question: can someone who does not personally have the relevant protected characteristic bring the claim at all, where the rule leaves them worse off in the same way as the people who do have it?

Indirect discrimination had traditionally been understood to require the person complaining to share the characteristic connected to the disadvantage. Rollett tested that assumption directly, and the tribunal rejected it as a fixed rule.

The legal question

Indirect discrimination is about rules that look neutral but land unevenly. The Act makes it unlawful to apply a rule that puts people sharing a protected characteristic at a particular disadvantage, unless the organisation has a good enough reason. The question here was narrower: does “people who share the characteristic” describe the only people who can complain — or can someone left worse off in the same way, without sharing the characteristic, complain too?

What the judgment decided

The tribunal held that:

• someone can bring an indirect discrimination claim without personally sharing the protected characteristic, provided the rule leaves them worse off in the same way it leaves that group worse off;
• the test is “same disadvantage” — does the rule hit this person the way it hits the group with the characteristic?
• this opens a route to challenge an unevenly-landing rule that does not depend on which group the person belongs to; and
• the principle is general — it is not confined to sex or gender reassignment, but applies across every protected characteristic in the Act.

Why this sharpens the case against blanket rules

Rollett is the sharpest available authority for why a blanket rule is a wide target, not a narrow one. An organisation might have assumed that only members of the group a rule disadvantages could challenge it — a comfortingly small pool. Rollett removes that assumption. Anyone who can show the rule leaves them worse off in the same way may be able to bring a claim, whether or not they have the characteristic themselves.

For toilets, changing rooms, uniform standards and eligibility criteria, that matters directly. A rule written without a documented, evidenced, case-by-case rationale is exposed to a wider range of challengers than whoever drafted it had in mind. The safer route is the one this toolkit sets out elsewhere: proportionate, evidenced, case-by-case decisions instead of one rule applied regardless of the facts in front of you.

What the judgment did not decide

Rollett is an Employment Appeal Tribunal decision. It binds employment tribunals, but it is not a Court of Appeal or Supreme Court ruling, and the “same disadvantage” principle may be tested further in higher courts. It should not be treated as settled law.

Rollett did not establish that:

• anyone automatically wins by pointing at some disadvantage — the organisation can still defend the rule by showing a good enough reason for it, and where it can, the claim fails whoever brings it;
• the “same disadvantage” test removes the need to show the rule actually causes that disadvantage in fact;
• the principle has been confirmed by a higher court — it has not, at least not yet;
• indirect discrimination law has been rewritten — the tribunal extended an existing framework rather than replacing it; or
• direct discrimination or harassment claims are affected — this is about indirect discrimination specifically.

Practical implications for organisations

Employers and services should:

• treat Rollett as a live warning at tribunal level, not a settled rule to build long-term policy on;
• look again at existing blanket rules — uniform, facilities, eligibility — and ask who could now challenge them, not just the group the rule was aimed at;
• keep the reason for every rule live and evidenced, because that defence is untouched and it is the one that actually decides cases;
• prefer case-by-case, documented decisions over blanket rules wherever the activity allows it;
• revisit EqIA and policy-review processes to account for the wider pool of people who could complain; and
• watch how the appeal courts treat “same disadvantage” as further cases come through.

A sound way to read the case

Decision-makers should ask:

• What rule are we applying, and to whom?
• Who else is left worse off in the same way, even though they do not share the characteristic?
• Do we have a good enough reason for the rule — a real aim, and a rule no heavier than that aim needs?
• Would deciding case by case remove the disadvantage the blanket rule creates?
• Could we defend this against someone outside the group we designed the rule around?
• Are we watching whether the higher courts test this principle further?

Key takeaways

• Rollett lets someone challenge a rule for indirect discrimination without sharing the protected characteristic, if the rule leaves them worse off in the same way.
• The principle applies across every protected characteristic, not only sex or gender reassignment.
• It is an Employment Appeal Tribunal decision: it binds tribunals, but no higher court has confirmed it yet.
• Having a good enough reason for the rule is still the defence that decides cases — “same disadvantage” only changes who can bring one.
• A blanket rule is now exposed to a wider pool of challengers — a further reason to prefer case-by-case, evidenced decisions.

This resource provides general information and does not constitute legal advice.