Positive discrimination under the Equalities Act upheld by the Supreme Court

The Supreme Court has handed down a landmark ruling on positive action under the Equality Act 2010 (“EqA”) finding that it was lawful for a housing association to provide social housing only to members of an Orthodox Jewish community under s.158 and 193 of the EqA.

Background

The case involved a single mother of four (‘Z’) who issued proceedings against Agudas Israel Housing Association (“AIHA”) after she was identified by Hackney Council as a priority for new accommodation, but despite six suitable properties being available in AIHA’s housing stock, was not offered a property.

Z was not put forward because she was not a member of Hackney’s Orthodox Jewish (Haredi) community and AIHA had a policy of only making properties available to persons from that community.

A challenge to this policy was brought on the grounds that it contravened EqA, in particular the prohibition against “direct discrimination” on the grounds of a protected characteristic i.e. that they were treated less favourably than a Haredi family because they did not share the relevant protected characteristic (their religious beliefs).

Ruling

 The Supreme Court, upholding the decisions of the Divisional Court and Court of Appeal, concluded that AIHA had not acted unlawfully, as it could rely on two exemptions under the EqA:-

 Section 158

Section 158 (2) provides that the EqA does not prohibit a person (such as a charity) from taking any action which is a proportionate means of achieving the aim of:

• alleviating disadvantage experienced by people who share a protected characteristic
• reducing their under-representation in relation to particular activities; and/or
• meeting their particular needs.

Section 193

Section 193 provides an exemption for charities only.  Sub-section (1) provides that a charity which restricts benefit to persons sharing a protected characteristic will not contravene the Act if it is acting in pursuance of its governing documents 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.

The Supreme Court ruled that AIHA could rely on each of these exemptions.

Analysis

 Comparing groups with other groups

The Supreme Court indicated that a group-based approach ought to be taken to the positive action provisions of the EqA.

The Supreme Court described that, whenever positive action provides an advantage to one protected group, it causes a disadvantage to another. If too much weight were given to the case of one badly affected individual outside the relevant group in comparison to one favourably affected individual within the relevant group, the risk was that the proportionality assessment would be skewed towards extremes. That is, the disadvantage to the individual (here, Z) should not be weighed against the benefit to the group (here, the Haredi community). Instead, the benefits of the Haredi community as a group should be weighed up against the disadvantages to other groups applying for social housing in Hackney.

The Supreme Court found that AIHA’s allocations policy was a proportionate means of achieving a legitimate aim. AIHA’s stock represented approximately 1% of the total housing stock in Hackney so it was considered that the impact on those not from the Haredi community was minimal. The Court found the needs of the community were “many and compelling”. It noted that the community had high levels of poverty and associated low levels of home ownership. Such disadvantages were exacerbated by rising incidents of anti-Semitism and the fact that Orthodox Jews often faced prejudice in the private rental sector.

The community also had specific needs, which were different to those people who did not share their protected characteristic. These included needing (i) to live relatively close to each other and (ii) larger than average housing (to accommodate larger than average families).

These disadvantages and specific needs were connected to their protected characteristic (their religious beliefs) and therefore it was concluded that allocation to those who were not from the Haredi community would “fundamentally undermine” AIHA’s charitable objects.

Blanket Effect

In addition, the Supreme Court noted that even though the current market circumstances (with high demand from the community) acted to give “a blanket effect” to AIHA’s policy, it was not an unjust blanket policy. In fact, it was reactive to the needs of the Haredi community and, therefore, flexible – in the event that AIHA’s aim of alleviating disadvantage to the Haredi community was ever met, the ‘blanket’ policy would be lifted.

Equality of outcome, not just opportunity

Counsel for Z argued that AIHA’s policy was not proportionate, in part, because it was concerned with equality of outcome and not opportunities, following the line of cases under the EU Equal Treatment Directive which dealt with equality between the sexes in the workplace.  The Supreme Court declined to adopt this approach, noting that the EqA deals separately with positive action in ‘recruitment and promotion’ in the workplace and that this is the area where the relevant case law might apply. The Supreme Court concluded that there is nothing in the legal framework to forbid a policy aiming to equalise outcomes in the context of social housing.

Conclusion

This is a landmark decision by the Supreme Court on s.158 and 193 of the EqA and is significant for all charitable organisations looking to undertake positive action to provide benefit to a particular protected group. It confirms that charities may utilise “bright line” criteria in their decision-making process, and that policies which have a “blanket effect” may still be proportionate.

However, it is important to note that the evidence of impact and disadvantage faced by one protected group may not be applicable to another. Equalities law is complex and we recommend that any charity worried about whether they are currently operating lawfully, or wanting to use positive action under EqA to seek legal professional advice.

Peter Spencer is a charity law specialist at the London City office of Wellers Law Group. You can contact peter on 020 7481 2422 or email peter.spencer@wellerslawgroup.com