Supreme Court,  UKSC 27,  1 WLR 3746, 9 July 2021
Lord Lloyd-Jones, Lady Arden, Lords Hamblen, Burrows and Stephens
The question for the Supreme Court was whether the exclusion of victims of human trafficking, from compensation under the 2012 iteration of the Criminal Injuries Compensation Scheme (“the CICS”) on the ground of their previous criminal convictions unjustifiably discriminated against them contrary to Articles 4 and 14 ECHR. The Court (per Lord Lloyd-Jones with whom Lady Arden and Lords Hamblen, Burrows and Stephens agreed) adopted broad approaches both to “ambit” and to “other status”. It accepted that the discrimination fell within Article 4 ECHR and that “having an unspent conviction which resulted in a custodial or community sentence is a status for the purposes of art 14”.
Because the claimants’ criminal convictions pre-dated and were unconnected with their status as victims of human trafficking the Court rejected their Thlimmenos claim that they had were entitled, by reason of being trafficked, to be treated differently from other CICS applicants with criminal convictions. The court did accept that the claimants had been discriminated against as people victims of trafficking with relevant unspent convictions, but concluded, having considered the approach of the Supreme Court in R (SC) v Secretary of State for Work and Pensions  UKSC 26,  3 WLR 428 (see associated blog), that such discrimination was justified. Continue reading
Supreme Court: Lord Reed P, Lord Hodge DP, Lord Lloyd-Jones, Lady Arden and Lord Leggatt JJSC,  UKSC 10,  ICR 786, 26 March 2021
This is the latest in a series of cases in which the UK’s highest court has had to consider whether a group of women employees are entitled to compare themselves with a group of male employees working for the same employer but employed in a different establishment. Continue reading
Supreme Court,  UKSC 33,  1 WLR 3863, 23 July 2021
Lord Hodge, DP, Lord Briggs, Lady Arden, Lords Hamblen and Leggatt
In this important case the Supreme Court ruled on the approach to s136 of the Equality Act 2010 which sets out the burden of proof in discrimination and harassment claims. The sole judgment was delivered by Lord Leggatt. The main question for the Court was whether the change in wording of the burden of proof provision from the pre-Equality Act 2010 (but post EU-inspired amendments to the legislative provisions transferring the burden of proof) reference to “the complainant [having proved] facts from which the tribunal could …conclude in the absence of an adequate explanation that the respondent” had discriminated to there being “facts from which the court could decide, in the absence of any other explanation, that a person” had discriminated (s136) had made any substantive difference to the test. The Court ruled that it did not. In addition, the Court was asked to consider whether the tribunal had been required to draw adverse inferences from the respondent’s failure to provide witness evidence from any of those responsible for the rejections of the claimant’s various applications. Again the Court ruled that it had not been so required. Continue reading
Supreme Court,  UKSC 40, 16 October 2020
Lords Reed, Kerr, Kitchen and Sales and Lady Arden
The case involved a challenge to Hackney’s allocation of about 1% of its social housing via a charitable housing association (Agudas Israel Housing Association/ AIHA) which prioritized applicants from the Orthodox Jewish Community. The reasons for the priority were, inter alia, that Orthodox Jewish families were disadvantaged in access to general social housing by reason of their tendency to have large families; that they suffered from significant economic disadvantage and discrimination in access to private sector accommodation; and that they needed to live in proximity to each other for religious reasons and because of antisemitism. The decision is an important one in rejecting the argument that a narrow approach should be taken to the parameters of lawful positive action.