HR Hub: Discrimination Case Law Update

As a consequence of the COVID-19 pandemic, British Airways carried out a restructuring exercise. This restructure led to scheduling changes, which affected the Claimants, all 49 of whom were Heathrow-based cabin crew.

The Claimants lodged a number of different claims but this particular appeal focused on the claims of indirect discrimination, specifically, indirect sex and race discrimination. The Claimants argued that the scheduling changes put the following employees at a disadvantage:

• Predominantly non-British national employees who lived abroad and commuted from abroad to their place of work (Heathrow) compared to those who commuted within the UK.
• Predominantly women who have caring responsibilities compared to those who do not have such responsibilities.

The claims were pursued by Claimants who possessed the relevant protected characteristics (such as non-British nationals and women) and by those who did not. The former’s claims fell neatly in the ordinary indirect discrimination category. The latter’s (those who do not possess the protected characteristics) claims were categorised as associative indirect discrimination, also known as “same disadvantage” indirect discrimination.

Specific examples of such claims included:

• A British national who lived in, and commuted from, France. This Claimant did not share the protected characteristic of a non-British nationality individual, but claimed that they were being put at the same disadvantage as non-British nationals who now had to commute to the UK from abroad.
• A male employee who had caring responsibilities. His claim was that he was being put at the same disadvantage as women with caring responsibilities.

The unique aspect of these claims for “same disadvantage” indirect discrimination is that the hearing took place in December 2022, before the introduction of section 19A of the Equality Act 2010 (EqA) which came into effect on 1 January 2024. Section 19A of the EqA brought into domestic law the claim of “same disadvantage” indirect discrimination, which previously had only been enshrined in European law.

Employment Tribunal:

At the preliminary hearing, the Tribunal accepted that a strict reading of section 19 EqA (which had not yet been extended as this was in 2022) did not extend to associative indirect discrimination. However, it found that as far possible, the statute should be interpreted in line with relevant EU law principles. Consequently, and on that basis, the Tribunal applied the relevant legislation, in combination with relevant EU principles, and upheld the claims for associative indirect discrimination.

Employment Appeal Tribunal:

British Airways appealed this decision, arguing that the Tribunal had erred in their interpretation of the relevant principles. They argued that the Tribunal had mistakenly interpreted the relevant domestic law in line with EU case precedent which went further than section 19 EqA intended. The EAT dismissed the appeal, finding that the Tribunal had made no such error in law.

The EAT found the Tribunal had been correct to reach the conclusion: “that they had jurisdiction to consider indirect discrimination under section 19 EqA, where there is a PCP* applied by an employer that puts people with a particular protected characteristic at a disadvantage, where the claimant in such a case must also suffer that disadvantage but need not have the same protected characteristic as the disadvantaged group”.

*PCP: provision, criterion, practice, which in this case was the change to the scheduling practice.

This case is a helpful reminder of this lesser known type discrimination: that of associative indirect discrimination.

Employers have a duty to ensure any PCP which they wish to implement does not discriminate against their workforce, whether directly or indirectly. And this case reminds us that they will need to ensure they go a step further when considering who may be indirectly discriminated against, because as this case demonstrate it may not be just those with a protected characteristic who may suffer the disadvantage.

Mrs Bradley had worked for the Royal Mint since January 2009. She was promoted until she became Director of HR, reporting directly to the CEO. Mrs Bradley had suffered from depression and anxiety since 2013 and received a diagnosis of ADHD in 2022.

In 2019 and 2021, Mrs Bradley attempted to end her employment, but each time the CEO refused to accept her resignation on the basis it was clear Mrs Bradley was taking those decisions whilst unwell. The issues leading to both resignations were resolved.

After Mrs Bradley had been diagnosed with ADHD in 2022, she openly discussed it with colleagues. Medication was prescribed for ADHD but at this time she stopped taking antidepressants. She had a clash with the executive team and became upset.  The CEO discussed the issues and things calmed down.  Mrs Bradley presented at work as “normal” with no further meltdowns or conversations about mental health.

About four weeks later, Mrs Bradley resigned.  The CEO, mindful of previous resignations, asked if she was ok.  The CEO took the view that Mrs Bradley was not visibly upset or showing any emotion which might give concern. They discussed the reasons for her resignation which included money, taking more lucrative interim roles in London, the fact that her husband was due to retire soon and she felt her job had become stale and repetitive. The CEO accepted the resignation later explaining that in her view, contextually, the resignation had been markedly different to the first two resignations.

Following the meeting, Mrs Bradley continued to work, spoke about her reasons for leaving with her colleagues, agreed the announcement about her leaving and became involved in recruiting her replacement.

However, three weeks after resigning, Mrs Bradley tried to rescind her resignation explaining to the CEO that she had not been herself at the time.  The CEO refused her request.

Mrs Bradley made various claims in the Employment Tribunal, but they were all either withdrawn or dismissed.  She only succeeded with her complaint for discrimination arising from disability. The Tribunal decided that she had suffered unfavourable treatment, arising from disability, by the employer failing to allow the resignation to be rescinded.

The Tribunal accepted that the employer had a legitimate aim in refusing the recission, which was described as maintaining reasonable operational integrity and expediency and maintaining stability within the small number of senior executives in the business.  However, the Tribunal was not persuaded that the employer had considered less discriminatory alternatives and implemented a proportionate means of achieving their aims.  The Tribunal went on to set out that based on medical evidence, it thought that Mrs Bradley resigned due to her mental health and ADHD. The employer failed to take any medical advice at the time instead preferring to rely on the CEO’s observations.

It is important to note that the Tribunal have not gone so far as to suggest that the outcome would have been any different had the Royal Mint sought medical advice as to Mrs Bradley’s capacity for decision-making when considering whether to accept her rescission or not. The point simply is that they failed to take these steps altogether despite being sufficiently aware of Mrs Bradley’s disability.

Whilst this Employment Tribunal decision is not binding on other tribunals and is very fact sensitive, it does remind employers of the need to be vigilant and to understand when employees might be deemed disabled and protected, and that they should defer to medical professionals for support and advice.

The council allowed employees the option to include their preferred pronouns in an email signature, but this was not obligatory. Mr Orwin held gender-critical views, and felt that the policy was intended to “facilitate gender self-identification”. He believed that sex is biologically immutable and binary. He adopted the preferred pronouns ‘XYChromosomeGuy/AdultHumanMale’.

The council met with Mr Orwin on a number of occasions to try to find a way through that suited both parties, but to no avail. On four separate occasions, management asked that he remove his email footer and he refused each time. The council also looked for less intrusive ways to resolve the situation with Mr Orwin, but he rejected those suggestions.

Eventually, the council informed Mr Orwin that by continuing to disobey their request, they would have no choice but to take disciplinary action against him. When Mr Orwin continued to use the email footer, the council took disciplinary action and suspended him, and eventually dismissed him for gross misconduct due to insubordination.

Mr Orwin claimed unfair dismissal, wrongful dismissal and direct discrimination.

Employment Judge Miller stated:

“Why did the claimant create the email footer? The simple answer … is as an act of protest. The claimant knew that it was a provocative act … The claimant was, in our judgment, mocking the idea of gender self-identification … The fact that [Mr Orwin] stated very clearly that [he] would not remove the footer and would not comply with a management instruction indicated that [he] had decided to no longer consider himself bound by the contract of employment. It is an obvious implied term of contracts of employment that employees will follow reasonable management instructions. That term is important – it goes to the heart of the employment relationship”.

The Tribunal found that Mr Orwin was not dismissed as a consequence of his protected belief and was not therefore directly discriminated against. He was given multiple occasions to rectify the position, but his consistent refusal to comply with a reasonable instruction meant the council had no choice but to dismiss him, making his dismissal fair in the circumstances.

As inclusion policies develop in line with societal advances, this case serves as a helpful reminder that employers need to be alive to the potential risks of potential direct, indirect and harassment claims when implementing and enforcing inclusion policies. This case also reminds us of the difference between holding and manifesting a belief and where a tribunal may draw the line between the right to self-expression and the employer’s right to protect its reputation.  An employee’s beliefs that are inappropriately manifested may well result in a fair dismissal if a fair disciplinary process is followed.

Under the Equality Act 2010 (“he EqA”), employers have a general power to take positive action to address the disadvantages experienced by people with a shared protected characteristic. Positive action helps address the under-representation of people with protected characteristics in the work context. It allows employers to design measures targeted towards particular under-represented groups. Positive action must however be a proportionate means of achieving the relevant aim.

In this case, three white British police officers, brought claims of direct race discrimination after they were denied the ability to apply for a promotion. The claimants alleged that they were unfairly treated when Sergeant Sidhu, an ethnic minority officer, was promoted to the role of Detective Inspector without undergoing the usual competitive application process. Indeed, Sergeant Sidhu had not yet even achieved the rank of Inspector before being made Detective Inspector. By contrast, the claimants at the time were all Inspectors.

Thames Valley Police had implemented a Positive Action Progression Scheme  designed to support the career advancement of ethnic minority officers. However, the claimants argued that the promotion of Sergeant Sidhu, which was carried out without advertising the position or following the standard competitive procedures, amounted to unlawful positive discrimination rather than lawful positive action.

The police tried to argue that by promoting Sergeant Sidhu, they had adopted proportionate means to achieve the legitimate aim of “enabling or encouraging persons of minority ethnic backgrounds to reach senior ranks” – a positive action permitted under section 158 of the EqA. Consequently, they denied that this move was a promotion, which would have put them in contradiction of section 159 EqA.

The tribunal did not agree with the police. They found that the police force had overlooked their own policies and procedures, which included the requirement to internally advertise new posts. Sergeant Sidhu received a promotion because she moved up in rank and received an increased salary and additional benefits. This was despite the fact that she was not at the relevant rank initially. All of this meant that section 159 EqA became relevant and the tribunal found that the appointment could only have been made had Sergeant Sidhu scored the highest marks throughout a competitive recruitment process, or if there had been a tie-break situation in which she was one of the remaining candidates.

The claimants had therefore been discriminated on the grounds of their race because they were denied the ability to apply for the role despite being more qualified for it than the individual who was given it. Because this amounted to less favourable treatment, and because the police’s approach was found not to be proportionate in achieving a legitimate aim, the claimants were successful in their claim for direct race discrimination.

The police had failed to consider whether positive action was appropriate.  In this case the police’s actions went beyond lawful positive action; it could not show that it was acting proportionately, since there was a good chance that the minority ethnic Sergeant would have secured the role anyway had a competitive recruitment exercise been followed.

This case pits positive discrimination, which is unlawful, against positive action, which is lawful.  It serves as an example of circumstances where positive action could not adequately justify the consequential positive discrimination it caused.

It is important to remind ourselves that this case involved a public sector employer – a police force. Public sector employers are under an obligation under the EqA to advance equality of opportunity for those individuals with a protected characteristic. This is not an obligation that is imposed on private sector employers however.