Court of Appeal: Underhill VP, Asplin and Simler LJJ,  EWCA Civ 336, 16 March 2022
Court of Session (Inner House): Lord Justice Clerk, Lord Malcolm, Lord Pentland,  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
Court of Appeal: Underhill VP, Baker and Davies LJJ,  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  UKSC 26,  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  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.
Supreme Court  UKSC 26,  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.
EAT: Choudhury P, UKEAT/0220/19/LA,  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
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
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
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”.
Administrative Court: Chamberlain J,  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  EWCA Civ 1482 and later post.
Court of Appeal: Peter Jackson, Simler and Lewis LJJ,  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