An appeal by British Airways relating to associative discrimination and its practice of ‘fire and rehire’ has been thrown out by the Employment Appeal Tribunal.
BA went to the EAT last month to appeal a decision from December 2022, which ruled that a group of cabin crew were subject to associative discrimination when the airline changed its terms and conditions during the pandemic.
The new terms included less predictable working patterns and shorter periods at home between shifts. The 38 claimants, who had responsibilities as carers, said this amounted to associative discrimination as they would need more certainty around hours so they could make alternative arrangements.
The claimants in the case – Rollett and others vs British Airways – had been supported by the Equality and Human Rights Commission (EHRC) and the new minister for women and equalities, Bridget Phillipson, was invited to intervene by the judge.
According to court documents published yesterday, the EAT has now dismissed the appeal.
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This was also the first case in the UK testing whether the Equality Act can cover indirect associative discrimination.
Protection from indirect associative discrimination is well-established in EU law but was not incorporated into UK law until recently, when the previous government introduced Section 19A of the Equality Act 2010.
Section 19A grants protection from indirect discrimination by association and removes the need for complainants to make the argument by relying on EU law, and the initial tribunal found that the Equality Act could be interpreted in such a way in this case.
A spokesperson for BA told the City AM newspaper: “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.”
Baroness Kishwer Falkner, EHRC chairwoman, said: “The protections from indirect associative discrimination afforded by Section 19A of the Equality Act are important, and it’s right that we challenge any legal action which could weaken them. As Britain’s equality regulator, we will always use our powers to uphold the rights of people to be protected from discrimination.”
A 2020 inquiry into BA’s treatment of staff by the transport select committee described its changes to terms and conditions as “a calculated attempt to take advantage of the pandemic”.
The committee found that BA and its parent company IAG’s behaviour fell “well below the standards expected from any employer. It is unacceptable that a company would seek to drive this level of change under the cover of a pandemic”.
Shortly before the general election last month, the Conservative government published a new statutory code of practice on “fire and rehire”, urging businesses to only re-engage employees on new and inferior terms as a last resort, and to consult for “as long as reasonably possible” on agreeable terms.
The new government’s Employment Rights Bill, promised within 100 days from Labour gaining power, will include measures to end fire and rehire and replace the previous statutory code, which it describes as “inadequate”.
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