Associative Discrimination: What The British Airways Case Can Mean for Employers

In British Airways Plc v Mr B Rollett and Others, an employment appeal tribunal dismissed the airline’s appeal that section 19 of the Equality Act 2010 couldn’t be interpreted to cover “indirect associative discrimination”. This came after the initial tribunal ruled it had jurisdiction over hearing claims involving such misconduct.

Below, we examine what transpired in the British Airways associative discrimination case and provide examples of how the misconduct may appear. Then, we assess its impact on employers and discuss how companies can mitigate litigation risks.

If you have any queries or feel you’ve faced employment discrimination, please contact Redmans Solicitors immediately. As employment law specialists, we can discuss your case and advise on your possible next steps.

To begin, simply:

Tribunal Upholds Jurisdiction in British Airways Associative Discrimination Case

In January 2021, 38 former cabin crew members initiated legal proceedings against British Airways. Their claims concerned a controversial “fire and rehire” practice during the pandemic, whereby staff were let go and rehired, often on less favourable terms.

The claimants, many of whom were non-British nationals, alleged that the airline’s changes distinctly disadvantaged those who resided and commuted from abroad. They also contended that said changes put individuals with caring responsibilities, predominantly women, at the same disadvantage.

Yet, some of the claimants didn’t share the protected characteristics of being a non-British national or a woman. This didn’t stop them from sharing the same disadvantage, though, with British nationals living abroad and men with caring responsibilities.

Therefore, in December 2022, a preliminary hearing took place to determine whether the employment tribunal could hear claims involving indirect discrimination, where the claimant doesn’t have a protected characteristic but suffers the same detriment as somebody who does, essentially, associative discrimination.

Once proceedings concluded, the tribunal held that it had the jurisdiction to rule upon cases of discrimination by association. They reasoned that section 19 of the Equality Act 2010 provided them the authority to do so.

However, British Airways disagreed. They argued that section 19 of the Equality Act UK only applies to those with the relevant protected characteristics. As such, the airline insisted that the tribunal didn’t have the authority to rule on cases involving claimants without them.

The airline’s appeal didn’t affect the initial ruling, though, as it was dismissed. The employment appeal tribunal agreed with the initial decision and stated that there’d been “no error of law in concluding that it had jurisdiction to consider indirect discrimination claims under section 19 EqA”. As a result, the claimants can proceed with their claims, with the main hearing set for early 2025.

Associative Discrimination Examples – What is it and How to Identify it

Associative discrimination involves an individual being treated unfairly at work because someone close to them has an Equality Act UK protected characteristic. The associated person may be a colleague, friend or family member.

The mistreatment, sometimes called discrimination by association, can present itself in numerous ways. For example, in EBR Attridge Law LLP v Coleman, it was found that the mother of a disabled child had faced unlawful discrimination. This was because although she didn’t have the protected characteristic of a disability, her child did, meaning she faced discrimination by association.

In this case, examples of such less favourable treatment included:

  • The employer’s refusal to allow the mother to return to her role after maternity leave, even though parents with non-disabled children could do so.
  • The mother having her flexible working arrangement rejected despite similar arrangements being accepted for those with non-disabled children.
  • Allegations that the mother was lazy and had been abusing her child’s condition to manipulate her working conditions. 

However, these associative discrimination examples aren’t limited to cases linked to disability. A job candidate may be refused a role if the employer learns they’re in a relationship with someone of a different race. Here, the discrimination would be linked to race.

Alternatively, an employee may be subject to less favourable treatment when caring for an elderly relative than if their caring responsibilities concern a child. In this scenario, the mistreatment would be linked to age.

Risks to Employers

Associative discrimination carries risks for employers if they fail to adhere to their legal obligations. These obligations include taking steps to avoid such mistreatment and properly handling incidents once they’ve been reported.

Should an employer be found to be non-compliant, they could face:

  • Litigation – Resulting in costly lawsuits, fines and compensation payouts
  • Reputational Damage – Impacting their public image and deterring potential employees, customers and business associates
  • Employee Productivity Declines – Caused by a toxic environment that influences high turnover rates and decreased performance

Understanding How to Mitigate the Risks

Any of these impacts can have far-reaching consequences that are extremely damaging for employers. As a result, it’s essential they take the necessary steps to mitigate such risks.

To begin, employers should introduce comprehensive policies that prohibit discrimination. These policies should detail what to do if someone has faced discrimination and establish how reported incidents must be handled.

However, as a policy prerequisite, the employer must implement effective reporting mechanisms. There’s no point instructing the workforce to report discrimination if there’s no clear avenue to do so. The mechanism should be easy for staff to follow, and employers must take appropriate subsequent action, such as disciplinary or dismissal.

What’s more, to ensure employees understand the discrimination policies, employers must provide training. This training should cover expected behaviour, how individuals affected by discrimination can report it, and what to do once a report has been made.

Unfortunately, not all initiatives go as expected. Sometimes, they don’t perform at their full potential; other times, they simply don’t work. To prevent this from occurring, employers should regularly review their policies and make amendments where necessary.

Finally, for those sadly affected by employment discrimination, employers need to provide appropriate support. This could include counselling, flexible working or other accommodations tailored to the individual’s needs. By offering employee support, employers can demonstrate their commitment to fairness and inclusion.

Bringing a Discrimination at Work Claim

If you believe you’ve experienced associative discrimination and are being treated unfairly at work, you may be able to claim compensation. However, before you do, individuals are advised to consider several steps.

First, where appropriate, it’s worth having an informal discussion with one’s employer. Due to the costs and stresses associated with legal proceedings, they will likely want to avoid litigation, potentially leading to a swift resolution.

Yet, even if this doesn’t occur or isn’t viable, individuals could still avoid legal action through a formal complaint. Raising a grievance places legal obligations on employers regarding how they handle complaints and the timeframe in which they must respond to them. Many employers have their own reporting mechanisms, so it’s worth checking if they do.

If a formal grievance proves unsuccessful, it’s recommended that an individual consider legal action. To pursue a claim, the individual must complete ACAS early conciliation, satisfy the eligibility criteria, and adhere to the tribunal’s time limits.

If you have any questions or want help with your case, get in touch with us today. Redmans Solicitors are employment law specialists, enabling us to provide expert advice on your circumstances.

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