British Airways (BA) has had its appeal over a key section of the Equality Act kicked out by the Employment Appeal Tribunal today, an appeal that saw intervention from the Government.
The airline had faced legal action from 38 former cabin crew members over its use of its ‘fire and rehire’ practice during the pandemic, which resulted in letting staff go before rehiring them on new and often less favourable terms.
The parties were at a two-day hearing last month as BA was looking to appeal an Employment Tribunal decision from December 2022, which ruled the Equality Act 2010 should be interpreted to allow for indirect associative discrimination in the context of sex and race discrimination.
Under section 19 of the Equality Act, a claim of indirect discrimination requires the person experiencing the less favourable treatment to personally possess the relevant protected characteristic.
Despite that, a UK court has not upheld a claim of indirect associative discrimination.
The BA case is the first case testing whether the Equality Act covers indirect associative discrimination claims.
The move to have a key section of the Equality Act prompted intervention from the UK government and the Equality and Human Rights Commission (EHRC).
Minister of State for Women and Equalities Bridget Phillipson has opposed BA’s appeal, and according to court documents, she asked the Tribunal to dismiss the appeal.
Today, the Employment Appeal Tribunal (EAT) led by Mrs Justice Eady dismissed BA’s appeal.
She concluded that the Employment Tribunal “made no error of law in concluding that it had jurisdiction to consider indirect discrimination claims under section 19 EqA.”
This is an ongoing battle as the common issues trial, which is the main hearing in this case, has been scheduled for February – March 2025.
Commenting on the decision, claimant’s lawyer, Tara Grossman, partner at Kepler Wolf : “I am delighted that the EAT has overwhelmingly found in favour of my clients on this issue. The decision of the EAT president was speedy and resounding.”
“I want to thank both the EHRC and the Government for backing the claimants in this case. Without this backing, they may not have been able to defend British Airways’ appeal which would result in fewer protections against discrimination for employees,” she added.
A spokesperson for British Airways told City A.M.: “This appeal was about seeking the Employment Appeal Tribunal’s direction on a narrow and technical area of law. We note the decision of the Tribunal and will carefully review its judgment before considering next steps.”