R (CN) v Secretary of State for Health and Social Care

Court of Appeal: Sir Geoffrey Vos MR, King and Dingemans LJJ, [2022] EWCA Civ 86, 4 February 2022

The claimant sought to challenge the exclusion from an infected blood compensation scheme of people who contracted hepatitis B (HBV). He had contracted HBV from unscreened blood in 1989 but HBV was excluded from the scheme because blood donors had been screened for HBV since 1972. The claimant sought to rely on Articles 8 and 14 and A1P1 ECHR and on s15 EqA (disability discrimination). His claim failed and the Court of Appeal rejected his appeal, relying on the Supreme Court’s decision in R (SC) v Secretary of State for Work and Pensions & Ors [2021] UKSC 26,  (see previous post) and ruling that any differential treatment of similarly situated individuals was justifiable given the intensity of review appropriate to judgments of social and economic policy notwithstanding the fact that disability discrimination was alleged. Continue reading

R (Good Law Project Ltd & Anor) v Prime Minister & Anor

Queen’s Bench Division (Divisional Court): Singh LJ and Swift J, [2022] EWHC 298 (Admin),15 February 2022

This decision is most interesting for its approach to standing, in particular that the Good Law Project’s roving approach to JR challenges did not provide it with standing for such challenges. The Court also rejected the claim of the Runnymeade Trust, which it accepted did have standing on a PSED challenge, to standing to challenge as indirectly discriminatory  the many informal appointments to positions of responsibility which characterised the approach of the UK Government’s approach under the pandemic. Such claims were in the Divisional Court’s view properly brought by individual litigants who sought to challenge their own exclusion from consideration rather than by either claimant, and were not the proper subject of judicial review. Having decided that the Runnymede Trust did have standing to challenge the defendant’s compliance with the PSED the court  concluded that the duty had been breached in relation to two of the appointments. Continue reading

For Women Scotland Limited v (1) The Lord Advocate, (2) The Scottish Ministers

Court of Session (Inner House): Lord Justice Clerk, Lord Malcolm, Lord Pentland, [2022] CSIH 4, 18 February 2022

This was a challenge brought by way of judicial review to the Scottish Government’s decision by way of the Gender Representation on Public Boards (Scotland) Act 2018 to implement certain positive action measures which treated as a “woman” a “person [who] is living as a woman and is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of becoming female.” Continue reading

Warburton v Chief Constable of Northamptonshire Police

EAT; Griffiths J, [2022] EAT 42, 14 March 2022

The EAT ruled that a tribunal had applied the wrong approach to victimisation when it dismissed the claimant’s complaint against the respondent. Continue reading

Biden v Waverley Borough Council

Court of Appeal: Macur, Asplin and Coulson LJJ, [2022] EWCA Civ 442, 1 April 2022

The Court of Appeal dismissed the claimant’s appeal against the dismissal of her claim that the respondent authority had breached the PSED by failing to make the inquiries the claimant deemed necessary on matters relating to the incidence of gender reassignment hate crime in the area of the accommodation offered to the claimant with the assistance of  an LGBT liaison officer, rather than a police support community officer. Continue reading

R (Sheakh) v Lambeth London Borough Council

Court of Appeal; Sir Keith Lindblom, Males and Elisabeth Laing LJJ, [2022] EWCA Civ 457, 5 April 2022

The Court of Appeal dismissed an appeal, based on the PSED, from the order of Kerr LJ refusing the claimant’s application for statutory and judicial review of experimental traffic orders (ETOs) creating Low Traffic Neighbourhoods which had been made by the respondent. Continue reading

Ali v Heathrow Express Operating Company Ltd & Anor

EAT, Judge Auerbach, Mr D Bleiman and Miss S Wilson CBE, [2022] EAT 54, 7 April 2022

This decision is a reminder that, where unwanted conduct related to a protected characteristic is not intended to offend, intimidate, etc, an objective test applies to the question whether conduct amounts to harassment. Continue reading

R (Police Superintendents’ Association) v HM Treasury

Administrative Court: Heather Williams J, [2021] EWHC 3389 (Admin), 15 December 2021

This was a challenge to a decision to close legacy public service pension schemes, including police schemes, and to move all active members to reformed pension schemes. The High Court ruled that the decision was unlawful by reason of failures in the consultation process. In addition, and of more relevance to this blog, she ruled that the decision had been taken in breach of the PSED (s149 Equality Act 2010) because the decision was reached prior to the decision-maker having been provided with a draft of the relevant equality impact assessment or a summary of indirect sex discrimination and other equality-related concerns raised by consultees. As Williams J put it at §171: “the PSED is placed on the Minister personally and what matters is what he or she took into account and knew, not what his officials read or summarised or discussed. As I have indicated when setting out the legal principles, the duty must be fulfilled at a time when a particular policy is under consideration, rather than after it has been adopted. Accordingly, there was a breach of the PSED in this regard”.

 

Claimant: Andrew Sharland QC and Stephen Kosmin, instructed by Mariel Irvine Solicitors

Defendant and Interested Party: Catherine Callaghan QC , Raymond Hill and Imogen Proud, instructed by Government Legal Department

 

 

Judd v Cabinet Office

EAT: Jason Coppel QC, UKEAT/0260/20/AT, 9 December 2021

This is an interesting case in which the EAT rejected an appeal from a finding that the claimant had not been discriminated against because of something arising in consequence of her disability (s15 EqA), or denied reasonable adjustments (s20(3) EqA) when an offer of a secondment in Montenegro was withdrawn on health grounds. The claimant had been the victim of a crime shortly before having been offered the secondment and had had to attend A&E twice thereafter with significant health issues as a result, but refused to make full disclosure of her health condition. A tribunal dismissed her claim on the basis that the adjustments she sought would leave her at risk and that it was reasonable for the employer to withdraw the secondment offer. The situation was complicated by the claimant’s refusal to make full disclosure to her employer’s OH advisers of her medical history. Continue reading

SM (a child, by his father and litigation friend) and another v Hackney LBC

Queen’s Bench Division (Planning Court): Kerr J, [2021] EWHC 3294 (Admin), 7 December 2021

This was an unsuccessful challenge under Articles 8 and 14 and s149 EqA (the PSED) to experimental traffic orders (ETOs) made by the respondent which took effect from 9 November 2020. The applicants complained that they are severely prejudiced by increased car journey times to and from their school. The challenge was brought under paragraph 35, Part VI, Schedule 9 to the Road Traffic Regulation Act 1984 rather than by way of judicial review, and so did not require permission, but Kerr J pointed out at §4 that the same principles applied. He expressed sympathy for the applicants who he accepted had been disadvantaged by the ETOs but upheld them as proportionate measures in pursuit of legitimate aims of reducing congestion, improving air quality, road safety and accessibility, encouraging active travel to school and social distancing (applying R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, [2021] 3 WLR 428 [and see earlier blog]. He rejected the PSED claim on the basis that, taken in the round, the respondent had taken sufficient steps to comply with the duty of due regard.

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