In our previous blog, we discussed the positive duty of a service provider to make reasonable adjustments for people with disabilities so as to ensure that they are not treated unfavourably.
What if the service provider goes above and beyond, would he/she be causing discrimination against other service users? The answer is no as long as the positive action is pursuant to section 158 of the Equality Act (EA 2010), which confirms that the steps will not be discriminatory if they are a proportionate means of:
- Overcoming or minimising the disadvantage;
- Meeting the relevant needs; or
- Enabling or encouraging participation.
Section 158 of the EA 2010 allows service providers to target the provision of his/her services to some people with protected characteristics who are disadvantaged or under-represented in some areas of life or have particular needs linked to that characteristic.
This is not a requirement but an option. For example, a community centre catering to ethnic minority people notices that certain ethnic communities in the area are under-represented at sessions and so it runs a separate session for those people only to encourage their attendance.
There is an extra layer of protection for charities. Section 193 of the EA 2010 provides that a charity that restricts the provision of a benefit to persons sharing a protected characteristic will not contravene the EA 2010 if:
- It is acting in pursuance of its Governing documents which usually contain a clause setting out its charitable objects/purposes; and
- The provision of benefits is:
- A proportionate means of achieving a legitimate aim; or
- For the purpose of preventing or compensating for a disadvantage linked to the protected characteristic.
Z & Aanor, R (On the Application Of) v London Borough of Hackney & Anor [2019] EWCA Civ 1099
Background
The charity Agudas Israel Housing Association (AIHA) had a policy, which reflects its charitable objects, of making social housing available primarily for members of the Orthodox Jewish community. The surge in demand for social housing from members of that community, as compared with the number of properties AIHA has available, means that, in practice, because of the said policy, all of its properties are allocated to members of the Orthodox Jewish community.
A challenge to this policy was brought on the grounds that it amounted to direct discrimination and contravened the EA 2010 by the applicant who was a single mother and identified by Hackney Council as a priority for new accommodation, but despite suitable properties being available, she was not able to get one because she was not a member of the Orthodox Jewish community.
Decision
The Supreme Court had to decide whether the AIHA’s policy was:
- A proportionate means of achieving a legitimate aim in accordance with sections 158 and 193 of the EA 2010; and
- In breach of the European Council Directive 2000/43/EC (Race Directive).
The Court held that the AIHA’s policy was not in breach of the EA 2010 because:
1. There was evidence that this community faced a number of disadvantages and struggled to find appropriate housing in the area that would meet their particular needs. Also, the policy only applied to 1% of the overall pool of social housing in Hackney so its practical impact on prospective tenants not from that community was low. The policy was therefore proportionate, justified, and lawful as a general positive action; and
2. AIHA prioritised applicants who engaged in Orthodox Jewish religious observance, not those who are ethnically Jewish, so it was not in breach of the Race Directive that prohibits direct/indirect discrimination based on racial/ethnic origin, not religious observance.
How can we help?
Ronny Tang is an Associate in our expert Dispute Resolution team, specialising in defamation claims, contentious probate and inheritance claims, Trusts of Land and Appointment of Trustees Act 1996 claims, Equality Act 2010 claims and Protection From Harassment 1997 claims.
If you need any advice concerning the subject discussed in this article, please do not hesitate to contact Ronny or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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