R (The Motherhood Plan & Anor) v HM Treasury

Court of Appeal: Underhill VP, Baker and Davies LJJ, [2021] EWCA Civ 1703, 24 November 2021

This was an appeal from the refusal of a challenge to the lawfulness of the Self-Employment Income Support Scheme (“SEISS”) introduced by the government during the first Covid-19 lockdown. The claimants argued that the scheme breaches Article 14 ECHR read with A1P1 by discriminating against self-employed women who took a period of leave relating to maternity or pregnancy in any of the three relevant tax years on which SEISS payments were calculated, this because the level of support granted to them under the scheme was not representative of their usual profits. Whipple J had dismissed the claim having considered the extraordinary pressures under which the scheme was introduced (including the imperative to distribute funds speedily) and the fact that the scheme adopted operated on the basis of data already held by the state. She was not persuaded that the claimants had demonstrated indirect discrimination or Thlimmenos discrimination but proceeded to consider justification, upon which she found against the claimants having adopted the “manifestly without reasonable foundation” approach (the correctness of which had been common ground between the parties).

The claimants appealed on the basis that Whipple J had erred in her approach to indirect discrimination, to Thlimmenos-type discrimination, and to justification. The Court of Appeal (Underhill and Baker LJJ, with whom Davies LJ agreed) agreed that the Judge had misdirected herself as to indirect discrimination by failing properly to take into account the disparate impact of the scheme on women who had taken maternity leave. It found it unnecessary to consider the challenge to the Judge’s application of Thlimmenos and (having considered the decision of the Supreme Court in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, [2021] 3 WLR 428 (see previous post) dismissed the appeal on the basis that Whipple J had been entitled to find that any discrimination was justified (further, that it was in fact so justified). The case provides further illustration (see also R (Salvato) v Secretary of State for Work and Pensions [2021] EWCA Civ 1482 and related post) that  the movement away from the “manifestly without reasonable foundation” test in cases where suspect grounds are in play is by no means a panacea for claimants.

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R (SC) v Secretary of State for Work and Pensions

Supreme Court [2021] UKSC 26, [2021] 3 WLR 428, 9 July 2021

Lord Reed P, Lord Hodge DP, Lady Black, Lords Lloyd-Jones, Kitchin, Sales and Lord Stephens

This is a very important decision of the Supreme Court concerning a challenge brought under Articles 8 and 12 ECHR, read alone and with Article 14, to the restriction of the individual element of child tax credit to an amount calculated by reference to two children.  The Supreme Court rejected the challenges under Articles 8 and 12 and, of more relevance to this blog, rejected arguments about direct and indirect discrimination against children, though it accepted that there were prima facie cases of sex discrimination and of direct discrimination against children living in households with more than two children, as compared with children living in households with two or fewer children.

The challenge ultimately failed on justification grounds but the case, which has been cited extensively in virtually every Article 14 decision of the domestic courts since it was decided, is significant because the Court revisited the “manifestly without reasonable foundation” which had been the orthodox approach to Convention challenges to economic/ social policy in the domestic courts since at least 2012.  The case was also significant in that it reimposed an orthodox approach to the treatment of unincorporated international obligations (here the Convention on the Rights of the Child) and included extensive consideration of the reliance which might be placed by the courts on Parliamentary debates and other Parliamentary material when considering whether primary legislation is compatible with Convention rights.

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Dobson v North Cumbria Integrated Care NHS Foundation Trust & Anor

EAT: Choudhury P, UKEAT/0220/19/LA, [2021] IRLR 729, 22 June 2021

The EAT allowed an appeal against a tribunal’s rejection of an indirect sex discrimination claim from the claimant, a community nurse who was dismissed because she was unable to comply with a forced move to flexible working, including at weekends, because of her caring responsibilities for her three children, two of whom are disabled.  The appeal, brought on multiple grounds, and succeeded on the basis that the tribunal had erred in limiting the pool for comparison to the team in which the Claimant worked, whereas it should logically have considered all community nurses across the Trust. Further, and of particular interest, Choudhury P ruled that the tribunal had erred in deciding that there was no evidence of the group disadvantage necessary for an indirect discrimination claim because it had failed to take judicial notice of the fact that women, because of their childcare responsibilities, were less likely to be able to accommodate certain working patterns than men. Continue reading

Asda Stores Ltd (appellant) v Brierley & Ors (No.3)

Supreme Court: Lord Reed P, Lord Hodge DP, Lord Lloyd-Jones, Lady Arden and Lord Leggatt JJSC, [2021] UKSC 10, [2021] 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

Price v Powys County Council

EAT (Choudhury J, Ms K Bilgan and Miss S Wilson CBE), UKEAT/0133/20/LA, 31 March 2021

Here the EAT rejected a claim that an employer had discriminated unlawfully on grounds of sex by permitting the claimant, the father of a recently born child, the equivalent of statutory maternity pay only if he were to take 37 weeks’ Shared Parental Leave (as was his statutory entitlement) whereas a woman who took maternity leave (or who took adoptive leave) would have been entitled to six weeks’ payment at 90% of average weekly earnings followed by 12 weeks at half pay plus statutory maternity pay and 21 weeks’ statutory maternity pay. Continue reading

R (MD & Anor) v Secretary of State for the Home Department

Administrative Court: Kerr J,  [2021] EWHC 1370 (Admin), [2021] PTSR 1680, 24 May 2021

The claimants were single mothers from Albania who had been victims of sex trafficking who had sought asylum in the UK. Prior to the grant of their refugee status they had been denied financial support under the provisions of the Modern Slavery Victim Care Contract in respect of their dependent children because they were asylum seekers in receipt of asylum support. They would not have been so excluded had they not been in receipt of asylum support but had been in receipt of financial support from other sources (universal credit, “legacy” benefits or paid work). The High Court ruled that the claimants’ treatment amounted to discrimination on grounds of sex contrary to Article 14 ECHR read with Article 8 and A1P1. Noting that the different treatment was the result of mistake rather than intention, the Judge ruled that the margin of appreciation available to protect the making of a judgment did not so readily protect against incompetence in its execution, remarking that “a margin of appreciation is not the same thing as a licence to err”. Kerr J was notably critical of the defendant, referring to her evidence being “not of progress towards reform but of corporate amnesia and repeated requests for more time” and submissions made on her behalf as “constitutionally wrong and unfair to the court”. He awarded the claimants under s8(3) HRA, seeing “real force” in the submission that their treatment had been “egregious”.

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R (Salvato) v Secretary of State for Work and Pensions

Administrative Court: Chamberlain J, [2021] EWHC 102 (Admin), 22 January 2021

The High Court ruled that the requirement that the childcare element (CCE) of Universal Credit (UC) could be paid to applicants only after they had actually paid for childcare, rather than becoming liable so to do (“the proof of payment rule”), was unlawful because it discriminated indirectly against women contrary to Article 14 ECHR read with Article 8 and/or A1P1 Further, having scrutinised the justification for the Secretary of State’s approach through the prism of Article 14, he went on to find that it was also irrational as a matter of common law. The decision engages intelligently with the sometimes tricky question of appropriate comparator pools, and shines useful light on the potential for common law rationality to accommodate discrimination-based claims even were direct reliance on Article 14 to become unavailable. Note that this decision was overturned on appeal (see [2021] EWCA Civ 1482 and later post.

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Wisbey v Commissioner of the City of London Police & Anor

Court of Appeal: Peter Jackson, Simler and Lewis LJJ, [2021] EWCA Civ 650, 6 May 2021

Here the Court of Appeal (Simler LJ with whom Peter Jackson and Lewis LJJ agreed) dismissed an appeal against a tribunal’s refusal to award compensation in respect of indirect sex discrimination to a police officer who was subject to a detriment because of his defective colour vision, a condition which affects 8% of men and 0.25% of women, rejecting the claim that s124 EqA breached EU law or Article 14 ECHR. Continue reading

Yocheva and Ganeva v Bulgaria

ECtHR, Fourth Section,  App. Nos. 18592/15 and 43863/15, [2021] ECHR 18592/15, 11 May 2021

Judge Eicke (President), Judges Grozev, Vehabović, Motoc, Harutyunyan, Vilanova, Guerra Martins

Here the ECtHR ruled that Bulgaria had breached Articles 8 and 14 by excluding from entitlement to a family allowance payable to families with only one living parent, single mothers of minor children whose fathers were unknown. The Court found, inter alia, that the exclusion amounted to sex discrimination because “as maternity is determined by the act of birth, in the vast majority of cases it is only children’s paternity that can be unknown” (§110-111). Perhaps unsurprisingly, it was unsympathetic to the argument put for the state that the rule was justified because it “was a regular practice of certain ethnic and social communities in Bulgaria to ‘pretend’ that the mother was a single parent so as to more easily obtain State benefit” (§§98, 121). Continue reading

R (Delve & Anor) v SSWP

Court of Appeal: Sir Terence Etherton MR, Underhill VP and Rose LJ, [2020] EWCA Civ 1199, 19 September 2020

The Court of Appeal refused an appeal against the dismissal of a challenge to increases in women’s state pensionable age. The decision is noteworthy for its narrow approach to indirect discrimination, though the Court of Appeal did adopt a more generous approach to comparators than the Divisional Court had done and left open the argument that the MWRF approach to justification has been incorrectly applied by the domestic courts. (Note that the decision in R (DA & Ors) v Secretary of State for Works and Pensions [2019] UKSC 21, [2020] 1 All ER 573 has been superseded by that in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, [2021] 3 WLR 428 (see later post), though there is no reason to think that the outcome of this case would have been different if it had postdated SC).

The appeal was brought against a decision of the Divisional Court rejecting a challenge to changes made by a series of Pensions Acts between 1995 and 2014 to state pensionable ages the effect of which was to equalise women’s and men’s state pensionable age at 68 (up from 60 and 65 respectively). The effect of successive changes was to place women born at various times at particular disadvantage in that they had to accommodate significant increases in pensionable age with limited opportunity to mitigate the impact of the changes.

The claimants, two women born in the 1950s whose pensionable age had been increased from 60 to 66, argued that the equalisation of men’s and women’s pensionable ages had outstripped improvements in the economic position of women in their age group who had not been treated equally with men during their working lives and were, as a result, poorer in their early 60s than were men. They claimed that the changes gave rise to direct age discrimination and indirect sex and/or combined sex and age contrary to Article 14 and A1P1, and to direct age and indirect sex discrimination contrary to EU law. They also claimed that the Secretary of State had failed in her duty to notify them far enough in advance of the fact that they would not, as they expected, start receiving their pension at age 60.

The Divisional Court ruled that state pension did not come within the ambit of EU law regulating age discrimination, state pensions further being excluded from the scope of the Equality Directive by Article 3(3) of that Directive. It ruled that the claimants could not compare themselves, for the purposes of the Article 14 age discrimination claim, to women born before them, who were subject to a different legislative regime. In any event, the Divisional Court was satisfied that any discrimination between women of different ages was not MWRF. As regards sex discrimination, the Court ruled that the EU claim was precluded by Article 7(1)(a) of Council Directive 79/7/EEC (the Social Security Directive) which permits Member States to exclude the determination of pensionable age from its scope. Nor, the Court ruled, could the removal of an advantage that had previously existed in favour of women amount to direct discrimination contrary on grounds of sex, or sex and age, contrary to Article 14. There was no indirect discrimination for the purposes of Article 14 because there was no causal link between the measures and the disadvantages accruing to women or to women in this age group and, again, the measures were not MWRF. Finally, the Divisional Court rejected the claim that the claimants should have been given more notice of the changes and ruled that the challenge to the changes imposed by the Pension Act 1995 were over 20 years out of time.

The claimants appealed the Divisional Court’s findings on Article 14 and its decision on indirect (but not direct) discrimination under EU law. The Court of Appeal ruled as follows (this note being concerned only with the discrimination arguments):

As regards the age discrimination claim under Article 14

The argument put for the Secretary of State that the claimants could not compare their treatment with that afforded older women was not accepted, the Court pointing out that the women were discriminated against not only by reason of falling within a different legislative regime, but also because of their dates of birth, which amounted to a “distinguishing criterion based on the[ir] personal status”. Having said this, the Court applied the MWRF for justification and found that there was “no basis for impugning the Divisional Court’s conclusion that the legislation equalising and then raising the state pension age was justified. The Divisional Court were right to approach the issue on the basis that this legislation operates in a field of macro-economic policy where the decision-making power of Parliament is very great” and that general rules such as Parliament was entitled to make would always have the effect that hard cases would arise. The Court of Appeal made reference to the evidence of increased rates of female employment and life expectancy, the international trend towards increasing and equalising state pension ages, the need for Britain to maintain international competitiveness and the increased availability of occupational pensions with equal pensionable ages.

As regards the claim of indirect sex or combined sex and age discrimination under EU law

The prohibition on sex discrimination in Article 4 of the Social Security Directive is (Article 7(1)) “without prejudice to the right of Member States to exclude from its scope (a) the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits”. The claimants’ argument that Article 7 permitted only legislation which temporarily set different state pension ages for men and women was rejected.

As regards the claim of indirect sex or combined sex and age discrimination under Article 14

It was clear from the decision of the Supreme Court in Essop & Ors v Home Office (UK Border Agency) [2017] UKSC 27, [2017] 1 WLR 1343 that indirect discrimination did not require a causal link between the less favourable treatment and the protected characteristic, as distinct from between the measure and the particular disadvantage suffered by the group and the individual. The claimants argued that they were disadvantaged by comparison with men aged between 60 to 66 who, although they were equally ineligible for a pension, and had suffered an increase in pension age (albeit only from 65 to 66), were better able to able to bear that lack of a pension between than were women in the same age group. They sought to rely on the dicta of the ECtHR in JD & A v United Kingdom (App no. 32949/17) [2020] HLR 5 that “indirect discrimination prohibited under art. 14 may arise under circumstances where a policy or measure produces a particularly prejudicial impact on certain persons as a result of a protected ground, such as gender or disability, attaching to this situation”. The Court of Appeal stated at §79 that this attempted reliance on JD would amount to “a significant expansion of the law” and that not “every measure that has that kind of prejudicial effect on a disadvantaged group in society amounts to unlawful discrimination entitling that group to more favourable treatment unless the measure can be justified”. If the Divisional Court had suggested (at §73) that “where the disadvantage suffered by those with a protected characteristic arises from traditions and cultural norms, it does not deserve protection, then we respectfully disagree. Such a conclusion would make a very substantial inroad into the application of anti-discrimination legislation”. But it appeared that the Divisional Court was:

“81 … seeking to express  … that there is no sufficient causal link between the measure and the disadvantage suffered by the women in this case. Even the broad test expressed at [85] of JD and A still states that indirect discrimination exists where a policy or measure produces a particularly prejudicial impact on certain persons as a result of a protected ground, such as gender or disability, attaching to the situation. The Appellants’ argument is that the causal link between the withdrawal of the pension and the protected characteristic is established because (i) the availability of the pension matters more for the wellbeing of disadvantaged members of society than it does for better off people, and (ii) people with a protected characteristic are disproportionately represented in the cohort of disadvantaged people, therefore (iii) it is indirectly discriminatory to deprive them of that benefit even though (iv) the criterion for access to that benefit is equally capable of being satisfied by people with and without that protected characteristic.

82.We do not accept that the causal link needed to establish a claim of indirect discrimination can be satisfied by that chain of reasoning. If it were, then there may well be other groups with a different protected characteristic combined with age who can also show that because they have suffered disadvantage in the work place over the course of their lives, they are more reliant on a state pension than comparator groups and so were adversely affected to a greater degree by the increases in pension age since 1995. To say that it is unlawful not to provide a state pension to every such group would turn the state pension into something which it is not; another means-tested benefit. The state pension is not a means-tested benefit but is linked to payments of national insurance contributions over the course of the claimant’s working life. There are other benefits provided which are means-tested, such as universal credit for those below the state pension age and pension credit for those above. These are the benefits designed to achieve a minimum level of income for poorer people; that is not the function of the state pension.

83. In our judgment, therefore, there is no sufficient causal link here between the withdrawal of the state pension from women in the age group 60 to 65 and the disadvantage caused to that group. The fact that poorer people are likely to experience a more serious adverse effect from the withdrawal of the pension and that groups who have historically been the victims of discrimination in the workplace are more likely to be poor does not make it indirectly discriminatory to apply the same criterion for eligibility to everyone, if that criterion is not more difficult for the group with the protected characteristic to satisfy.”

The Court went on to rule that any indirect discrimination would in any event have been justified on the MWRF approach, rejecting the claimants’ attempt to rely on the decision of the ECtHR in JD and A because (§88) the Court of Appeal was “bound by the Supreme Court’s decision in DA see e.g. R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2020] EWCA Civ 542, [2021] 1 WLR 1151, and “the situation here is precisely the situation that the ECtHR referred to in JD and A as the situation where the MWRF test does apply, namely the effect of transitional measures to correct historical inequalities. This case does not therefore present either the opportunity or the challenge of deciding whether the MWRF test applies outside the scope of welfare benefits or as to the effect of JD and A on the Supreme Court’s decision in DA”.

 

Claimants: Michael Mansfield QC, Henrietta Hill QC, Adam Straw and Keina Yoshida, instructed by
Birnberg Peirce Solicitors

Defendant: James Eadie QC and Julian Milford QC, instructed by The Treasury Solicitor

post modified 15 January 2021