Employees bring claims following changes to shift patterns & flexible working options

A number of employees have brought claims to the employment tribunal following changes to shift patterns and flexible working options.

Following changes at British Airways to shift patterns and flexible working options, 51 employees brought claims to the employment tribunal (ET). These claims included indirect and associative indirect discrimination under the Equality Act.

The basis of the claim was that the changes put those who commuted to Heathrow from mainland Europe at a particular disadvantage, and so disproportionately affected non-British workers. A British worker – who also commuted from mainland Europe – said the changes put her at the same disadvantage, even though she did not share the same protected characteristic.

In an earlier European Court of Justice case, the Grand Chamber held that the “principle of equal treatment in the [Equal Treatment Directive] is intended to benefit all persons who, although not themselves a member of a race or ethnic group concerned, nevertheless suffer less favourable treatment or a particular disadvantage on one of those grounds.”

In this case, the ET – having found it had jurisdiction to hear the claim for associative discrimination – read section 19 in line with the directive and allowed the claim.

The employment appeals tribunal (EAT) was in agreement.

The principle of associative indirect discrimination – also known as ‘same disadvantage’ – now makes up part of section 19 of the Equality Act. It sets out that a person will be discriminated against if an applied policy:

• would put people of a relevant protected characteristic at a particular disadvantage
• would put a person, without the same protected characteristic, at “substantively the same disadvantage.”

What should I do?

As an employer, it is mandatory to ensure that when you are altering any provision, criterion or practice within your business, you are considering the detrimental impact that it could have on all employees.

If you and your business require any assistance on how to avoid issues like those discussed above, please don’t hesitate to get in touch with our expert employment law team.

Our Legal 500-rated employment law & business immigration team are experts in guiding businesses of all sizes and backgrounds through a range of issues that may arise.