Employment practitioners will be aware of the significance of the European Court of Justice’s judgment in Coleman v Attridge. Prior to that decision, discrimination claims relating to disability (and age, sex and gender reassignment) could only be brought by a claimant who himself had the relevant protected characteristic.
Sharon Coleman was employed as a legal secretary at Attridge Law. She was also a carer for her disabled son. Ms Coleman resigned in March 2005. She alleged that her resignation was because she had been unlawfully discriminated against on account of her son’s disability. She brought proceedings in the Employment Tribunal, relying on the Disability Discrimination Act 1995, which implemented the EU Equal Treatment Framework Directive 2000/78. The Disability Discrimination Act did not, on its face, apply to associative discrimination, but Ms Coleman contended that it should be interpreted purposively to prohibit discrimination on the ground of her association with a disabled person.
The Tribunal made a reference to the ECJ. The ECJ held that direct ‘associative discrimination’ on the ground of disability was prohibited under the Directive. On return in the Employment Appeal Tribunal, Mr Justice Underhill (as he then was) found that the Disability Discrimination Act could be read in line with the ECJ’s decision (Coleman No.2). The concept of associative discrimination was ‘an extension of the scope of the legislation’ but it conformed with its aims. A new class of claimant was born.
The Equality Act 2010 subsequently consolidated the legislation so that discrimination by association extended to all the protected characteristics (except marriage and civil partnership). Associative discrimination claims under s.13 of the Equality Act are now familiar territory. Are there other types of associative discrimination claim?
Associative indirect discrimination
Yes, found Employment Judge Anstis in his judgment in Rollet & Ors v British Airways Plc (Preliminary Hearing) on 29 December 2022. When a respondent applies a neutral provision, criterion or practice that puts people with a protected characteristic at a particular disadvantage, a claimant who suffers the same disadvantage but who does not share the protected characteristic can also bring a claim. This is a claim for associative indirect discrimination under s.19 Equality Act. The Tribunal’s judgment is based on the ECJ’s decision in CHEZ v Komisia za zashtita ot diskriminatsia.
The decision in CHEZ
CHEZ installed electricity meters in Bulgaria. Normally, CHEZ installed meters at less than two metres above ground, making them easily accessible. In districts that were inhabited mostly by Roma people, CHEZ installed meters on pylons six to seven metres above ground. This made them less accessible. The practice put Roma inhabitants at a disadvantage, but it also put Anelia Nikolova, a person who was not herself Roma but who owned a shop in the area, at the same disadvantage.
The ECJ considered that installing meters at this height could amount to direct discrimination if the reason for doing it related to the ethnic origin of people living in the area. Alternatively, it could be indirect discrimination if the reason was not discriminatory but nevertheless put Roma people, who were likely to live in the area, at a particular disadvantage. Importantly, the ECJ held that the Equal Treatment Directive 2000/78/EC equally afforded protection to Ms Nikolova – notwithstanding the fact that she had no relevant protected characteristic. The Grand Chamber said:
‘the principle of equal treatment in the Directive is intended to benefit also persons who, although not themselves a member of the race or ethnic group concerned, nevertheless suffer less favourable treatment or a particular disadvantage on one of those grounds’.
The decision in Rollet & Ors v British Airways Plc
The main action in Rollett arises out of changes that British Airways made to its shift patterns and flexible working options around 2020. Fifty-one claimants bring various claims, including claims for indirect discrimination and associative indirect discrimination under s.19 Equality Act.
The claimants say that changes to shifts and working options put those who commuted to Heathrow from mainland Europe at a particular disadvantage compared with domestic commuters. This disproportionately affected non-British workers. That is the basis of the indirect race discrimination claim. In addition, a British claimant who commuted from mainland Europe says that she was put at the same disadvantage, although she did not share the relevant protected characteristic. That is the basis of the associative indirect race discrimination claim.
A Preliminary Hearing was held in December 2022 to ascertain, amongst other things, whether the Employment Tribunal had jurisdiction to hear claims for associative indirect discrimination under s.19 Equality Act.
At the hearing, the parties agreed that the Tribunal was bound to interpret domestic statute in accordance with EU law ‘as far as possible’. The parties also agreed that, after CHEZ, the Equal Treatment Directive extended protection to those who did not share the same protected characteristic as the disadvantaged group but who were similarly disadvantaged by the same practices. The point in dispute was whether the Tribunal could properly interpret the Equality Act in accordance with the CHEZ decision.
The Tribunal considered its duty to interpret the domestic legislation in line with the ECJ, restricted only by interpretations that ‘go against the grain of the legislation’. In doing so, it reviewed redrafted sections of the Equality Act submitted on behalf of the claimants. It concluded that allowing associative indirect discrimination claims under s.19 Equality Act did not go against the grain of the Act. It had jurisdiction to hear associative indirect discrimination claims – in respect of race, sex and disability.
The Tribunal rejected a different type of associative indirect discrimination under s.19 whereby a claimant, who does not have the protected characteristic but who associates with a person who does, suffers a disadvantage that is unique to their association with the person with the protected characteristic. This type of claim succeeded in the Employment Tribunal decision of Follows v Nationwide Building Society, which also made reference to CHEZ. Claims for associative discrimination arising from disability (s.15 Equality Act) and associative failure to make reasonable adjustments (s.20 Equality Act) were rejected.
Although a first instance decision, Rollett is a noteworthy development in the scope of discrimination legislation under the Equality Act. Imagine, for example, a provision, criterion or practice which disadvantages those (predominantly women) with childcare responsibilities. Applying CHEZ, a male primary carer could also become a claimant. The ambit of protection is widened, and it shall be interesting to see if other Tribunals follow suit.
Martina Murphy and Jessica Franklin (12 King’s Bench Walk) appeared for the claimants, instructed by Tara Grossman, Kepler Wolf, Jacqueline McGuigan, TMP and Peter Byrne, Nexus.
An amended version of this article first appeared in the Employment Lawyer’s Association Briefing, February 2023.