Balancing Congestion Control and Indirect Discrimination: EWCA's Ruling in Independent Workers Union v. The Mayor of London

Introduction

The case of Independent Workers Union of Great Britain v. The Mayor of London ([2020] EWCA Civ 1046) addressed a significant legal challenge concerning urban transport policies and equality law in the United Kingdom. The appellant, a trade union representing low-paid workers, contested the removal of an exemption from the Greater London Central Zone Congestion Charging Scheme ("the Scheme") for licensed private hire vehicles (PHVs), also known as minicabs, unless they were designated as wheelchair accessible. The central issues revolved around claims of indirect discrimination based on race, gender, and disability under the Equality Act 2010, as well as potential breaches of the Human Rights Act 1998.

The appeal was specifically focused on the claims under the Equality Act 2010, with the appellant arguing that the policy change disproportionately adversely affected PHV drivers from black and minority ethnic (BAME) backgrounds, female drivers, and disabled passengers. The case highlighted the intersection of public policy objectives—specifically, reducing traffic congestion and improving air quality—and the protection of vulnerable groups from discriminatory practices.

Summary of the Judgment

The England and Wales Court of Appeal (Civil Division) upheld Lewis J's decision, dismissing the appellant's challenge. The court found that the removal of the congestion charge exemption for PHVs, except those designated as wheelchair accessible, was a proportionate means of achieving the legitimate aim of reducing traffic congestion within the Central Congestion Charging Zone (CCZ). The judgment emphasized that the measure corresponded to a real need, was appropriate and suitable, and that no less intrusive alternatives could realistically achieve the same objectives.

The court acknowledged the significant disparate impact on BAME PHV drivers, who constitute approximately 94% of minicab drivers in London, and on female drivers and disabled passengers. However, it concluded that the benefits of reducing congestion and improving air quality outweighed the adverse effects on these groups. The court also addressed and dismissed various grounds of appeal, including claims of improper proportionality analysis and incorrect identification of comparator pools under the Equality Act.

Analysis

Precedents Cited

The judgment extensively referenced prior case law to establish the principles guiding indirect discrimination and proportionality. Key precedents included:

Lockwood v Department of Work and Pensions [2013] EWCA Civ 1195: Clarified the approach to proportionality in indirect discrimination cases, emphasizing the need for a balance between discriminatory effects and the legitimate aims pursued.
Bilka-Kaufhas GmbH v Weber Von Hartz (Case 170/84) [1984] IRLR 317: Established the classic test for justification of indirect discrimination, focusing on the correspondence to a real need, appropriateness, and necessity.
R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293: Highlighted the stringent scrutiny required when indirect discrimination relates closely to suspect grounds such as race.
R (UNISON) v Lord Chancellor [2017] UKSC 51: Provided insights into the stages of justification under the Equality Act, distinguishing between the PCP itself and its discriminatory impacts.

These cases collectively informed the Court of Appeal's understanding of the legal standards applicable to the assessment of indirect discrimination and the proportionality of measures adopted by public authorities.

Legal Reasoning

The Court of Appeal delved into the intricate legal reasoning underpinning the judgment. Central to this was the application of the proportionality principle, which mandates that any discriminatory measure must be a proportionate means of achieving a legitimate aim.

Legitimate Aim: The court recognized traffic congestion and environmental pollution as legitimate and pressing public policy objectives. The Mayor's transport strategy underscored the urgent need to reduce the number of vehicles in the CCZ to alleviate these issues.

Proportionate Means: The removal of the PHV exemption was deemed appropriate as it directly targeted the substantial increase in minicab numbers within the CCZ, a primary factor contributing to congestion. The judgment scrutinized the forecasts provided by experts, acknowledging their assumptions but accepting their conclusions due to the absence of less intrusive alternatives that could achieve comparable results.

Impact on Disadvantaged Groups: While acknowledging the significant adverse impact on BAME PHV drivers, female drivers, and disabled passengers, the court balanced these against the broader societal benefits. Mitigating factors, such as the limited proportion of affected drivers and potential for cost absorption by operators, were considered insufficient to render the measure disproportionate.

The court also addressed concerns regarding the identification of comparator pools under the Equality Act, affirming that the original judgment appropriately focused on PHV drivers as the relevant group.

Impact

The judgment has several significant implications for future cases and the broader legal landscape:

Balancing Public Policy and Equality: The case exemplifies the court's role in balancing legitimate public policy objectives against potential indirect discrimination, reinforcing the standards required for justification under the Equality Act.
Proportionality Scrutiny: It underscores the necessity for rigorous proportionality assessments in cases where measures have disparate impacts on protected groups, especially in areas like transport regulation.
Comparator Pool Clarification: The affirmation regarding the appropriate identification of comparator pools provides clarity for future discrimination claims, emphasizing the importance of accurately defining affected groups.
Authority of Expert Reports: The reliance on expert analyses, such as those by CEPA and Mott MacDonald, highlights the critical role of empirical evidence in shaping judicial decisions on complex policy matters.

Moreover, the judgment serves as a precedent for how courts may handle similar challenges where economic and social policies intersect with equality concerns, particularly in urban settings grappling with congestion and environmental issues.

Complex Concepts Simplified

Indirect Discrimination

Indirect discrimination occurs when a seemingly neutral policy, rule, or practice disproportionately adversely affects individuals with a protected characteristic (e.g., race, sex, disability) compared to those without. Under the Equality Act 2010, such discrimination is unlawful unless it can be justified as a proportionate means of achieving a legitimate aim.

Proportionality Principle

The proportionality principle requires that any measure which has a discriminatory effect must be carefully balanced against the intended benefits. The measure must correspond to a real need, be appropriate to achieving the objective, and be necessary without being excessively restrictive.

Comparator Pool

In discrimination claims, the comparator pool refers to the group against which the affected individuals are compared. Correctly identifying this group is crucial for determining whether the measure in question has a disproportionate impact on the protected class.

Congestion Charging Scheme

The Congestion Charging Scheme is a policy tool used to reduce traffic congestion and improve air quality in designated urban areas by imposing charges on vehicles entering these zones during specific times.

Conclusion

The Court of Appeal's decision in Independent Workers Union of Great Britain v. The Mayor of London reinforces the judiciary's commitment to ensuring that public policies aiming to address societal issues like congestion and environmental degradation do not unlawfully disadvantage protected groups. By affirming the proportionality of the congestion charge exemption removal, the court balanced the legitimate public interest with the rights of minority and vulnerable groups, setting a comprehensive precedent for future legal challenges in similar contexts.

The judgment highlights the intricate interplay between policy effectiveness and equality considerations, emphasizing the importance of evidence-based decision-making and thorough judicial scrutiny. It serves as a vital reference point for both policymakers and legal practitioners in navigating the complexities of formulating and contesting urban transport regulations within the framework of equality law.