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Insights / News
The President of the EAT, Mrs Justice Eady, has dismissed BA’s appeal and held that indirect discrimination under section 19 Equality Act 2010 allows a claim by someone who does not have the protected characteristic of the disadvantaged group but suffers the same disadvantage.
The Respondent (BA) appealed the Employment Tribunal’s finding that it had jurisdiction to hear ‘associative’ indirect discrimination claims under s19 EqA 2010.
The EAT considered the CJEU’s judgment in CHEZ Razpredelenie Bulgaria AD v Komisia za zashita ot discriminatsia (Case C-83/14) [2015] IRLR 746 (‘CHEZ’). It was common ground between the parties that CHEZ held, in relation to the Race Directive, that indirect discrimination extended to those who did not share the same protected characteristic as the disadvantaged group but who shared the same disadvantage.
On behalf of the Claimants, it was argued that s 19 EqA should be interpreted to allow such a claim in relation to proceedings before 1 January 2024, applying the Marleasing principle. The Respondent argued that s19 EqA was incapable of being read compatibly with CHEZ and that it would go against the ‘grain’ of the EqA 2010.
The EAT also considered the new section 19A EqA 2010 introduced under the Equality Act 2010 (Amendment) Regulations 2023. The new s19A EqA gave effect to CHEZ in domestic law from 1 January 2024. The Respondent argued that the Regulations, and therefore s 19A EqA, were ultra vires. The Minister’s position was that the Regulations (and s19A) were not ultra vires and that s.19 EqA could be read compatibly with CHEZ.
In its reserved judgment, the EAT held that section 19 EqA could be read compatibly with CHEZ; it did not go against the grain of the domestic legislation. Further, that such an interpretation was entirely consistent with the legislation’s purpose of strengthening the law to support progress on equality and of ensuring domestic legislation aligns with the EU definition of indirect discrimination. The EAT also held that the Regulations and s19A could not be said to be ultra vires.
Martina Murphy successfully acted as lead counsel on behalf of the Group Claimants before the ET and EAT, leading Jessica Franklin (12KBW). Martina was instructed by Tara Grossman, Kepler Wolf Ltd, Jacqueline McGuigan, TMP Solicitors LLP and the Equality and Human Rights Commission (EHRC).
To read the full judgment of British Airways plc v Rollett & Others, Minister for Women and Equalities intervening [2024] EAT 131, click here.
Martina Murphy’s practice focuses on employment, group litigation and professional discipline. Martina’s “advocacy is excellent”, as is her ability “to relate to clients and really understand their aims“. She regularly appears unled in the appellate courts including the EAT and the Court of Appeal and is often instructed directly on appeals. Martina is also the Chair of the Employment Law Bar Association (ELBA).
To find out more about Martina, contact Nicholas Levett on +44 (0)20 7427 4908.
News 21 Aug, 2024