Indirect Discrimination Without a Protected Characteristic (Section 19A)

What Is Section 19A?

Section 19A of the Equality Act 2010 creates a new form of indirect discrimination that allows employees to bring claims even when they don’t personally possess a protected characteristic. This is sometimes called “same disadvantage” indirect discrimination, or colloquially “indirect discrimination by ricochet”.

Before section 19A, the law required claimants to have the protected characteristic themselves. For example, if an employer’s requirement to work full time disproportionately affected women (who statistically bear more childcare responsibilities), only women could bring an indirect sex discrimination claim. A man in the same situation, unable to work full time because of his childcare responsibilities, had no claim under the original section 19 of the Equality Act 2010.

Section 19A changed this position.

Now, anyone who suffers “substantively the same disadvantage” as those with a protected characteristic can bring a claim. The section was introduced by the Equality Act 2010 (Amendment) Regulations 2023 (SI 2023/1425) and came into force on 1 January 2024.

The Legal Background

The CHEZ Razpredelenie Bulgaria Case

Section 19A codifies the principle established by the Court of Justice of the European Union (CJEU) in CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia (Case C-83/14) [2015] IRLR 746.

In CHEZ, Ms Nikolova ran a grocery shop in a predominantly Roma district of Bulgaria. The electricity company installed meters at a height of six to seven metres in this area (compared to 1.7 metres elsewhere), making it impossible for residents to monitor their electricity consumption. Ms Nikolova was not herself of Roma origin, but she suffered the same disadvantage as her Roma neighbours.

The CJEU held that the EU Race Directive protected not only people with the protected characteristic, but also those who suffered the same disadvantage as a result of a discriminatory practice. This was a significant departure from the previous understanding that indirect discrimination required the claimant to possess the protected characteristic.

Pre-2024 UK Position

Following Brexit, there was uncertainty about whether UK tribunals could continue to apply CHEZ. The original wording of section 19 of the Equality Act 2010 required the claimant to have the protected characteristic. The Retained EU Law (Revocation and Reform) Act 2023 removed the interpretive effects of EU law from 1 January 2024.

To preserve the CHEZ principle in domestic law, the government introduced section 19A through secondary legislation. This ensures that employees who suffer collateral harm from discriminatory practices remain protected.

What Section 19A Says

Under section 19A, a person (A) discriminates against another person (B) if:

• A applies a provision, criterion or practice (PCP) to B
• A also applies, or would apply, the PCP to persons who do not share a relevant protected characteristic
• The PCP puts, or would put, persons with the relevant protected characteristic at a particular disadvantage compared with persons who do not share it
• The PCP puts, or would put, B at substantively the same disadvantage as persons who share the protected characteristic
• A cannot show the PCP is a proportionate means of achieving a legitimate aim

The section applies to all protected characteristics: age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, and sexual orientation. It does not apply to pregnancy and maternity discrimination, which has separate provisions.

Section 19 vs Section 19A: What’s the Difference?

Section 19 and section 19A both deal with indirect discrimination, but they protect different claimants. Understanding which applies to your situation is essential.

Which Section Applies to You?

Use section 19 if: You have the protected characteristic and are disadvantaged by the PCP. For example, you are a woman and an inflexible working policy makes it harder for you to balance childcare.

Use section 19A if: You don’t have the protected characteristic but suffer the same disadvantage as those who do. For example, you are a man with primary childcare responsibilities and the same inflexible policy affects you in exactly the same way it affects working mothers.

In practice, claimants with the protected characteristic should use section 19 as it is more established. Section 19A exists for those who would otherwise have no claim because they lack the characteristic, despite suffering identical disadvantage.

Same Disadvantage vs Association: An Important Distinction

It’s essential to understand that section 19A creates “same disadvantage” indirect discrimination, not “associative” indirect discrimination in the traditional sense.

Same Disadvantage Discrimination

Under section 19A, the claimant must suffer substantively the same disadvantage as those with the protected characteristic. This occurs when both the claimant and the protected group are affected by the PCP in the same way, for the same underlying reason.

The clearest example is a working father with childcare responsibilities. A requirement to work full time disadvantages women (who statistically bear more childcare burdens) and disadvantages him for exactly the same reason: both groups struggle to meet the requirement because of childcare commitments. The disadvantage is the same.

Traditional Associative Discrimination

Traditional associative indirect discrimination, as seen in Follows v Nationwide Building Society ET/2201937/2018, involves a different type of connection. In Follows, a woman caring for her disabled mother was disadvantaged by a requirement to work in the office. She wasn’t disabled herself, nor did she suffer the same disadvantage as disabled employees. Instead, she was disadvantaged because of her association with a disabled person.

There is ongoing uncertainty about whether section 19A covers Follows-type claims. Commentators have noted that section 19A requires the claimant to suffer “substantively the same disadvantage” as people with the protected characteristic. In Follows, the claimant’s disadvantage arose from her caring role, not from having the same impairment as disabled employees. The employment tribunal in British Airways v Rollett [2024] EAT 131 expressly distinguished between these two types of claim.

“The distinction between ‘same disadvantage’ and ‘associative’ indirect discrimination is crucial. Section 19A clearly covers cases where someone suffers the identical disadvantage as a protected group. Whether it extends to carers disadvantaged by their association with disabled relatives is a question tribunals will need to grapple with in the coming years.”

Tom Street Principal Solicitor, Tom Street & Co.

Key Case: British Airways v Rollett

The leading authority on same disadvantage indirect discrimination is British Airways plc v Rollett & Others [2024] EAT 131, decided by Mrs Justice Eady (President of the EAT) on 15 August 2024.

The Facts

Following the Covid-19 pandemic, British Airways restructured its operations, introducing new scheduling practices for Heathrow-based cabin crew. Several employees brought indirect discrimination claims, alleging that the scheduling changes:

• Put non-British nationals who commuted from abroad at a particular disadvantage (race discrimination)
• Put those with caring responsibilities at a particular disadvantage (sex discrimination)

Crucially, some claimants did not have the relevant protected characteristic. For example, Mr Rollett was a man with childcare responsibilities who claimed indirect sex discrimination, and a British national living in France claimed indirect race discrimination alongside her non-British colleagues.

The Decision

The EAT dismissed British Airways’ appeal, holding that:

• Section 19 could be interpreted consistently with CHEZ to allow same disadvantage claims
• The introduction of section 19A by the 2023 Regulations was lawful and not ultra vires
• Claimants who suffer the same disadvantage as a protected group can bring indirect discrimination claims, even without the protected characteristic

The EAT emphasised that this interpretation did not go “against the grain” of the Equality Act’s purpose of strengthening equality protections.

Practical Examples of Section 19A Claims

Working Fathers and Childcare

The most common scenario for section 19A claims involves working fathers. If an employer requires full-time attendance or inflexible working hours, this typically puts women at a disadvantage (because women statistically bear more childcare responsibilities). A father in the same position, unable to meet the requirement because of his childcare commitments, suffers substantively the same disadvantage and can now bring a claim under section 19A.

Temporary Physical Impairment

An employee with a temporary injury (such as a broken leg) may suffer the same disadvantage as disabled employees from certain workplace practices. For example, if an employer requires all staff to use stairs rather than lifts, this puts disabled employees at a disadvantage. An employee with a temporary injury affecting their mobility suffers substantively the same disadvantage and may bring a section 19A claim, without needing to prove their condition meets the Equality Act definition of disability.

Commuting and Nationality

In Rollett, British nationals living abroad suffered the same disadvantage as non-British nationals from scheduling changes that made commuting from overseas more difficult. Both groups faced identical practical difficulties, regardless of their nationality.

Religious Observance

An employer’s requirement to work Friday evenings may disadvantage Jewish employees who observe Shabbat. A non-Jewish employee with caring responsibilities that prevent Friday evening work might argue they suffer substantively the same disadvantage (being unable to work at that time), though this argument is more tenuous as the reason for the disadvantage differs.

How to Bring a Section 19A Claim

Step 1: Identify the PCP

First, you must identify the provision, criterion or practice (PCP) that causes the disadvantage. This could be a formal policy, an informal practice, or a one-off decision that amounts to a rule. Examples include requirements to work full time, specific shift patterns, office attendance requirements, or physical requirements of the job.

Step 2: Identify the Protected Group

You must show that the PCP puts, or would put, persons with a protected characteristic at a particular disadvantage. This requires identifying which protected group is disadvantaged and understanding why. Statistical evidence is often helpful but not always required.

Step 3: Demonstrate Your Same Disadvantage

You must prove that you suffer “substantively the same disadvantage” as the protected group. This means showing that the PCP affects you in the same way and for the same underlying reason as it affects those with the protected characteristic.

Step 4: Show No Justification

The employer can defend the claim by showing the PCP is a “proportionate means of achieving a legitimate aim.” You should be prepared to challenge both the legitimacy of the aim and whether the means chosen were proportionate.

Step 5: Submit Acas Early Conciliation

Before issuing tribunal proceedings, you must contact Acas for early conciliation. This is a mandatory step. Acas will attempt to help you and your employer reach a settlement without the need for a tribunal hearing.

Step 6: Issue Your ET1 Claim

If early conciliation is unsuccessful, you can submit your claim to the employment tribunal using the ET1 claim form. Your claim must be submitted within three months minus one day from the discriminatory act, though early conciliation extends this period.

Time Limits for Section 19A Claims

Section 19A claims follow the same time limits as other discrimination claims under section 123 of the Equality Act 2010:

• Primary time limit: Three months minus one day from the date of the discriminatory act
• Continuing acts: Where discrimination is ongoing, time runs from the end of the continuing course of conduct
• Extension: The tribunal has discretion to extend time where it is “just and equitable” to do so
• Early conciliation: The time limit is paused during Acas early conciliation

Compensation for Section 19A Claims

Successful section 19A claims attract the same remedies as other indirect discrimination claims:

Injury to Feelings

Awards for injury to feelings are assessed using the Vento bands, updated annually:

Financial Losses

You can claim compensation for financial losses caused by the discrimination, including loss of earnings, loss of benefits, and pension losses. Unlike unfair dismissal, discrimination compensation is uncapped.

Interest

Interest accrues on discrimination awards at 8% simple interest. For injury to feelings, interest runs from the date of the discriminatory act. For financial losses, interest runs from the mid-point between the act and the calculation date.

The Employer’s Defence: Objective Justification

An employer can defend a section 19A claim by showing the PCP was a “proportionate means of achieving a legitimate aim.” This requires the employer to prove:

Legitimate Aim

The aim must be legitimate, which typically means a genuine business need. Examples include ensuring adequate staffing levels, meeting customer requirements, health and safety considerations, or efficient business operations. An aim that is itself discriminatory cannot be legitimate.

Proportionality

Even with a legitimate aim, the employer must show the PCP was proportionate. The tribunal will consider:

• Whether the aim could be achieved by less discriminatory means
• The extent of the disadvantage caused to the claimant
• Whether the employer considered alternatives
• Whether the employer’s assessment was based on evidence or mere assumption

In Follows v Nationwide Building Society, the tribunal rejected Nationwide’s justification because the need for office-based supervision was itself discriminatory and the employer failed to consider less discriminatory alternatives such as hybrid working.

“Employers defending section 19A claims should not assume that any business reason will suffice. Tribunals scrutinise justification arguments closely, particularly where the employer has failed to consider alternatives or engaged in proper consultation with affected employees.”

Tom Street Principal Solicitor, Tom Street & Co.

What Section 19A Does Not Cover

Despite broadening indirect discrimination protection, section 19A has important limitations:

Reasonable Adjustments

The duty to make reasonable adjustments under section 20 of the Equality Act 2010 remains restricted to disabled employees. The Court of Appeal in Hainsworth v Ministry of Defence [2014] IRLR 728 held that a mother of a disabled child could not claim a failure to make reasonable adjustments. This position has not changed.

Victimisation

Interestingly, when Parliament introduced section 19A, it did not make equivalent changes to the victimisation provisions. Section 27 of the Equality Act 2010 still requires the claimant to have done a “protected act” themselves. This may suggest Parliament deliberately chose not to extend associative protection to victimisation claims.

Pregnancy and Maternity

Section 19A does not apply to pregnancy and maternity discrimination, which is covered by separate provisions in section 18 of the Equality Act 2010.