I concentrate in this blog on two cases involving religions.

Religion, housing allocation and the Equality Act

In R (ota Z) v LB of Hackney & Agudas Israel Housing Assoc Ltd [2019] EWCA Civ 1099, the court considered a challenge to the housing policies of a charitable provider of social housing in Hackney. Accommodation was allocated by the Housing Association only to members of the Orthodox Jewish community in the Stamford Hill area of London. The Divisional Court found that ‘there are very high levels of poverty and deprivation [amongst the Orthodox community], with associated low levels of home ownership … there is a strong correlation between the evidenced poverty and deprivation and the religion’. It also found that the arrangements for allocating housing which placed Orthodox Jews in a primary position to enable them both to avoid the disadvantages and to meet the needs. This would be unlawful discrimination under the Equality Act 2010 unless there was an appropriate exception. 

Two exceptions were relied on by the Association. S158 applies to allow positive action where persons who share as protected characteristic have needs that are different from the needs of persons who do not share it. In such cases it is lawful to take action which is a proportionate means of achieving the aim of enabling or encouraging persons who share the pc to overcome or minimise that disadvantage.  

S193(2)(b) was the other exception. It required that benefits are provided to the protected group in pursuance of a charitable instrument. The benefits must be provided for the purpose of preventing or compensating for a disadvantage linked to the protected characteristic. There was no question of proportionality here.

The Divisional Court decided that the arrangements adopted by the Association were indeed a proportionate means of overcoming a disadvantage and permitted by s158 Equality Act 2010 and the arrangements were made pursuant to a charitable instrument and permitted by s193. The evidence showed that strictly orthodox Jews are more likely to experience poverty and deprivation than other “mainstream” Jewish families; 25% lived in overcrowded conditions compared to 8% of the general Jewish population. The average number of occupants of orthodox Jewish households in Stamford Hill was 6.3. The evidence was that for reasons of religion, members of the community needed to stay in the orthodox area largely in Stamford Hill. The properties owned by the housing association were designed specifically for orthodox Jewish religious needs. In particular, there was a need for large flats or houses because of the size of their families. 

The Divisional Court considered the relevant question to be “whether arrangements viewed as a whole and in the light of relevant market circumstances address the disadvantages and needs of the orthodox Jewish community in a manner that outweighs the disadvantage to non-members of that community”.

In the Court of Appeal, the argument for the claimant included the suggestion that “preventing or compensating for a disadvantage linked to a protected characteristic might not be a legitimate aim” so that it would not require a proportionality test to be applied but this was rejected. 

The Court of Appeal said that its role on an appeal on proportionality is strictly limited: “It is not enough to demonstrate an error or flaw in the reasoning of the court below. Rather, it must be such as to undermine the cogency of the conclusion”. The court should assume that the lower court has taken the whole of the evidence into consideration.

The court emphasised that it will not normally interfere in assessments on proportionality “if after reviewing the judge’s judgement and any relevant evidence, the appeal court considers that the judge approached the question of proportionality correctly as a matter of the law and reached a decision which he was entitled to reach” (applying the Supreme Court decision in Re B (Care Proceedings: Appeal) [2013] 1 WLR 1911. This was qualified to an extent by Lord Carnwath in R v Chief Constable of Greater Manchester [2018] 1 WLR 4079 where it was held that there was no need for a “significant error of principle…. The decision may be wrong not because of some specific error of principle in that narrow sense, but because of an identifiable flaw in the judge’s reasoning such as a gap in own logic, a lack of consistency or a failure to take into account some material factor which undermines the cogency of reasoning’. It was not enough that the appeal court might have arrived at a different evaluation.

It was argued here that a balance had not been properly struck by the Divisional Court as was required between the benefits conferred on the Orthodox Jewish community against the detriment caused to others who were not members of that community. At Paragraph 79, the court said that whilst the extent of the evaluation may be impossible to assess with any precision, that does not cast doubt on the fact that amelioration there is. Here the effect was to withdraw from the pool of potentially avoidable properties for letting 1% of the units. The disadvantage was minuscule.

Before the Court of Appeal, the only challenge was whether the policy could be justified as proportionate under the terms of s193 of the 2010 Act. The Court held that the practical effect of the policy was proportionate. It found that it was obvious why the difficulties facing the community would be ameliorated by the policy, and while that me be impossible to assess with any precision, there was no doubt that it did. The Divisional Court had assessed the impact that this had on other groups and individuals (such as the Claimant Z who was not an orthodox Jew). The impact on the pool of properties available to these groups was miniscule but the impact on the Orthodox Jewish community of changing it would have been significant.

The Court also held that under s193 (where a charity is seeking to prevent or compensate for a disadvantage linked to a protected characteristic) the test for proportionality does not apply. Instead, the issue is whether the purpose of providing the benefit is to meet that aim as it was here.

Free speech and religion

There are an increasing number of cases on which the religious views of people cause them to say things which are inimical to good community relations but they seek to claim the benefits of free speech as a matter of their human rights. In Page v NHS Trust Development Authority EAT0183/18, the Claimant was a practising Christian and lay magistrate who took to the airwaves to make his views known on the sensitive question of adoptions by same sex couples. He appeared on Radio Kent and gave an interview to the Mail on Sunday but did not inform his employer or ask their permission before doing so.

In a further BBC Breakfast News interview, Mr Page expressed his belief that it was in the best interests of the child to be adopted by a mother and father. When asked whether being gay was unnatural he said it was “not what is best for a child”. He was removed from the magistracy on March 2016 and brought another claim over this.

The ET decided that the reason for the Respondent Authority’s actions were not because of the Claimant’s beliefs but rather were by reason of the manner in which those beliefs were expressed. It continued “The tribunal accepts that manifestation of religion or belief for the purposes of art 9 could extend in a suitable case to the right to attempt to convince others of the merit of the religion or belief …but in this case the actions of the Claimant went further than that” (ET para 56). Further, “Even if this were wrong this would fall within the qualifications in art 9(2) so that the Claimant’s actions were in conflict with the protection of health and with protection of the rights of others” so that it fell within the exception.

The dismissal arose because he had appeared in the press and on TV without informing the Trust when he had been expressly told that he should do so and because of “the impact of the Claimant’s actions on the Trust’s ability to serve the entire community in its catchment area”. The reason was thus: “The instruction not to engage with the media without informing the Trust first and the Trust’s expectation that he would not make remarks which would be likely to diminish its ability to engage with a section of the public” (para 36).

One issue was whether it was necessary to adopt a comparison for the discrimination case to succeed and the EAT decided that there was no obligation to identify a comparator in every case if the reason for treatment could otherwise be discerned.

The EAT accordingly relied on the language of Eweida in the ECHR at para 82 that “In order to count as a manifestation within the meaning of art 9, the act in question must be intimately linked to the religion of belief”. The ET found that there was no basis for any finding of group disadvantage for the purposes of indirect discrimination under s19(2)(b) Equality Act. 

The instruction to the effect that the Trust’s expectation that he would not make remarks which would be likely to diminish its ability to engage with a section of the public do not interfere with the Claimant’s ability to manifest his religious belief. The EAT essentially accepted that the claimant did not need to give interviews to make remarks that he did in order to manifest his faith. Thus, his claims were dismissed. 

Miscellany

A congratulations for the brave decision of Lane J in Antuzis v DJ Houghton [2019] EWHC 843 where the court found that directors could be sued when they had been responsible for grossly underpaying staff below the minimum wage and denying them holiday pay. This was because they were not acting in the best interests of the company as they did not honestly believe they were acting in accordance with employment law and could not do so. So far were they away from their fiduciary duties to the company that they “wrecked its reputation in the eyes of the community” 

As regular readers of this blog will know, I collect examples of unusual examples of worker “participation” or “commitment” in a broadly defined way. I noticed for example that Jack Ma founder of Alibaba the Chinese hi tech firm, conducted a group wedding for scores of employees at Hangzhou. Also, Capita appointed Lyndsey Browne and Joseph Murphy for £64500 a year role as worker directors. Meanwhile Julian Richer the owner of Richer Sounds handed the control of his TV and hi fi retailer to a John Lewis style employee trust. 

An interesting survey by Savills the estate agents found that although 12% thought hot desking made them more productive, whilst half believed the opposite. I am in the latter category. 

I think of myself as really old when one’s pupils and regular juniors become judges. In the last few months there has been a slew of such announcements including Simon Loy, James Bax, Kirti Jeram and Seamus Sweeney. I wish them all great success (but am not sure I can bring myself to call them Sir or Madam!).