Indirect discrimination: Exploring the legislation that has widened the pool of potential claimants 

On 1 January 2024, new legislation came into force and inserted a new section 19A into the Equality Act 2010.

This section (which hasn’t been very well publicised) is a significant change to the law and has widened the pool of potential claimants who can claim indirect discrimination.

As a reminder of the 'normal' provisions under section 19, indirect discrimination in employment occurs where:

• The employer applies to employee A, a provision, criterion or practice (PCP).
• A has a protected characteristic.
• The employer also applies (or would apply) that PCP to persons who do not share employee A's protected characteristic (this is what differentiates it from direct discrimination).
• The PCP puts or would put persons with whom A shares the protected characteristic at a particular disadvantage compared to others.
• The PCP puts or would put A to that disadvantage.
• The employer cannot show the PCP to be a proportionate means of achieving a legitimate aim.

Notably, a claimant has to share the same protected characteristic as the group being placed at a disadvantage.

For example, ABC Limited has a requirement for employees to work full time, 09:00 to 17:00 Monday to Friday. This would particularly disadvantage women as a group (compared to men) because they are more likely to have childcare responsibilities. As such, a claimant who wants to bring a claim for indirect discrimination based on that PCP would need to share the same protected characteristic as the group that are particularly disadvantaged; in other words, the claimant would need to be a woman and be put to the particular disadvantage.

Changes under section 19A

Under section 19A, provided there is a group with a protected characteristic who can claim indirect discrimination, so too can others who do not share the protected characteristics but who suffer substantively the same disadvantage. This has been described as "indirect discrimination by ricochet" (or you could think of it as piggybacking those who have the relevant protected characteristic).

In the above example, under section 19A a man with childcare responsibilities who is required to work full time 09:00 to 17:00 Monday to Friday at ABC Limited can also bring a claim for indirect discrimination. This is because the man faces substantially the same disadvantage as to the woman for the same reason – both would be unable to manage their childcare commitments without working part time. Section 19A has therefore widened the pool of employees who can potentially claim indirect discrimination.

The above is just one example, and the new rules can apply to any protected characteristics save for pregnancy and maternity. For example, in relation to those who are temporarily physically impaired due to an injury, they will be able to claim indirect disability discrimination where they can show a PCP puts disabled employees at a particular disadvantage due to physical limitations and that it put them at substantively the same disadvantage.

The EAT recently in British Airways plc v Rollett and others and Minister for Women and Equalities (Intervener) [2024] EAT 131 confirmed that the introduction of section 19A was not 'ultra vires' (outside of the government's power). That EAT decision has simply paved the way for a section 19A indirect discrimination ('indirect discrimination by ricochet') claim to be run to full hearing on behalf of claimants who are British Airways cabin crew and who brought indirect discrimination claims in response to scheduling changes introduced by the airline which they say put:

• Employees who lived abroad and commuted to Heathrow – who are predominantly non-British nationals – at a particular disadvantage to those who commuted from inside the UK.
• Employees with caring responsibilities – who are predominantly women – at a particular disadvantage compared to those who did not have caring responsibilities.

The claimant group consists of those who have the relevant protected characteristics (because they are non-British nationals and/or are female) as well as those that do not have either of those protected characteristics, but say they suffer substantively the same disadvantage as those that do (such as a British national who lives abroad and commutes to Heathrow and a male employee with caring responsibilities).

Practical considerations

1. Identify potential risks: Employers should review their policies and practices to identify anything that could inadvertently disadvantage employees based on protected characteristics. This includes recruitment processes, flexible working requirements and promotion criteria. A similar risk assessment should also take place when introducing new policies and general rules too.  
2. Justification: If a PCP is found to put a group with a protected characteristic at a particular disadvantage, to successfully defend a claim an employer would need to show that they can objectively justify the PCP as a "proportionate means of achieving a legitimate aim." 
3. Grievances: Ensure line managers are trained on indirect discrimination so that they understand how it works. The fact an employee may be complaining about a PCP when they do not have a protected characteristic will no longer be a sufficient basis on which to dismiss their concerns.