Positive discrimination, proportionality and justification
In Z & Anor, R (On the Application Of) v London Borough of Hackney & Anor  EWCA Civ 1099, the Court of Appeal upheld the divisional court’s decision that, on the facts of the case, the practical effect of a policy that offered social housing only to members of the Orthodox Jewish community was proportionate.
The facts of the case
Agudas Israel Housing Association (AIHA), a charitable organisation, provided housing to members of the Orthodox Jewish (Haredi) community only. Z was a single mother with four children, one of whom had autism. Z was not considered for a property in Hackney because of AIHA’s allocation policy. The Court of Appeal had to establish whether its policy, which was discriminatory on grounds of religion, was lawful.
The legislative framework around positive discrimination
‘Direct discrimination’ is defined by section 13 of the Equality Act 2010 and it does not exclude discrimination on grounds of religion or belief, if it is a proportionate means of achieving a legitimate aim. Section 19 of the act defines ‘indirect discrimination’ and states that it may also be justified if it is “a proportionate means of achieving a legitimate aim”.
Section 158 of the act allows a person (A) to treat another person with a protected characteristic (B) more favourably than someone without the protected characteristic if A reasonably thinks that people with the protected characteristic suffer a disadvantage or are under-represented in a particular activity. Albeit not applicable to the case under discussion, Section 159 applies to positive action in the context of recruitment and promotion.
In discussing limiting or balancing fundamental rights, the Court of Appeal cited the three-step test set out in Akerman-Livingstone v Aster Communities Ltd  UKSC 15:
“First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective?”
The properties owned by AIHA contained physical features specifically designed to enable Orthodox Jews to observe their religion. The features were considered by the court as normative rather than essential. However, this was considered along with the evidence that there were higher chances of living in overcrowded houses due to large number of family members and increased anti-Semitism. Therefore, this was considered as proportionate means of achieving a legitimate aim of overcoming a disadvantage shared by members of the Orthodox Jewish community.
In measuring how extended the impact of such discriminatory policy was on people who did not share the same protected characteristics, the Court of Appeal reiterated that the properties available to members of the Orthodox Jewish community only represented one per cent of potentially available properties. Therefore, the disadvantage to people who do not share the same characteristic was insignificant.
Z’s representative argued that the court failed to consider the evidence that other groups faced similar issues in accessing housing, namely large family sizes, and that the Orthodox Jewish community were not disadvantaged in comparison with other such groups. The court responded to this argument by stressing the need to focus on the protected characteristic. It stated that “the question is not simply whether others are in equal or greater housing need. The question is whether that need is linked to the relevant protected characteristic: in this case adherence to Orthodox Judaism.”
In focusing on the legitimate aim, which was to meet the needs of the Orthodox Jewish community in Hackney, the Court of Appeal suggested that the focus should not be on whether the policy was a blanket one but whether it achieved the legitimate aim. It was found that the allocation of properties to people who do not share the same protected characteristic would undermine the charity’s main objective.
Effect of the policy
The case demonstrates that, while proportionality is assessed on a case-by-case basis, the practical effect that a prima facie discriminatory policy might have, as well as the implications for other communities who do not share the same protected characteristics are important considerations. Although this case does not directly relate to an employment matter, it is easy to see how the implications of its decision are likely to reverberate within employment law, particularly given the current drive to improve equality and the inherent risk that more favourable treatment for specific protected characteristics can have for employers.
Posted on Sep 24th, 2019 by Lyons Davidson