Supreme Court Affirms Proportionate Positive Action by Charity under Equality Act 2010

Introduction

The case of Z & Anor, R (on the application of) v. Hackney London Borough Council & Anor ([2020] UKSC 40) centers on the obligations of a charity, Agudas Israel Housing Association Ltd (AIHA), under the Equality Act 2010. AIHA, established to provide social housing predominantly for the Orthodox Jewish community in Stamford Hill, Hackney, faced legal challenges when a non-Orthodox Jewish individual, a single mother with four children, alleged unlawful discrimination in housing allocations.

The appellant contended that AIHA's allocation policies amounted to direct discrimination based on religion and race, violating her rights under the Equality Act 2010. The lower courts dismissed her claims, a decision that she subsequently appealed to the Supreme Court.

Summary of the Judgment

The Supreme Court upheld the rulings of the lower courts, affirming that AIHA's housing allocation policies were proportionate and legally justified under sections 158 and 193 of the Equality Act 2010. The Court found that AIHA's practices constituted permissible positive action aimed at addressing the specific needs and disadvantages faced by the Orthodox Jewish community. Consequently, the appellant's claims of direct discrimination based on religion and race were dismissed.

Analysis

Precedents Cited

The Judgment extensively referenced key cases and statutory provisions to bolster its reasoning:

Aster Communities Ltd v Akerman-Livingstone [2015] UKSC 15: Provided a framework for assessing proportionality in discrimination cases.
R (E) v Governing Body of JFS [2009] UKSC 15: Addressed direct discrimination based on ethnic origins.
Briheche v Ministre de l'Intérieur [2004] ECR I-8807: Discussed conditions under which positive discrimination is permissible.
Cresco Investigation GmbH v Achatzi [2019] 2 CMLR 20: Highlighted the application of proportionality in positive discrimination within EU law.
Mandla (Sewa Singh) v Dowell Lee [1983] 2 AC 548: Defined criteria for determining ethnic groups in discrimination law.

Legal Reasoning

The Court applied a structured proportionality test, assessing whether AIHA's allocation policy was a proportionate means to achieve legitimate aims as defined under the Equality Act 2010:

Legitimate Aim: Addressing the severe housing shortage faced by the Orthodox Jewish community and mitigating disadvantages linked to their religious practices.
Proportionate Means: AIHA’s policies prioritized the community in a manner that was necessary and appropriate given the acute imbalance between housing supply and demand.
Impact on Other Groups: The Court acknowledged the minimal impact on non-Orthodox applicants, deeming it proportionate given the pressing needs of the Orthodox community.

The Court emphasized that positive action, especially by charitable organizations, often involves group-based approaches to effectively address specific disadvantages. The judgment underscored that AIHA’s allocation practices did not constitute unlawful positive discrimination but were a legitimate and proportionate response to the community’s unique needs.

Impact

This judgment reinforces the legal framework allowing charities to implement group-based positive actions under the Equality Act 2010. It establishes that when such actions are proportionate and aim to address genuine disadvantages faced by a protected group, they are lawful even if they disproportionately benefit that group. This precedent provides clarity for charitable organizations in their allocation policies and underscores the judiciary's recognition of the nuanced demands of community-focused service provision.

Complex Concepts Simplified

Proportionate Positive Action

This concept allows organizations, including charities, to take affirmative steps that favor a particular group to rectify inequalities or disadvantages they face. These actions must be necessary, appropriate, and not excessive in relation to the aim pursued.

Sections 158 and 193 of the Equality Act 2010

Section 158: Permits positive action to address disadvantages experienced by persons sharing a protected characteristic.

Section 193: Provides exemptions for charities from certain anti-discrimination rules, allowing them to confine benefits to specific groups as outlined in their charitable objectives.

Race Directive and Marleasing Principle

The Race Directive (Council Directive 2000/43/EC) mandates equal treatment irrespective of racial or ethnic origin. The Marleasing Principle obligates national courts to interpret domestic laws in a manner consistent with EU directives, ensuring harmonization between national and EU law.

Conclusion

The Supreme Court’s decision in Z & Anor v. Hackney London Borough Council & Anor solidifies the legal standing of charities to engage in proportionate positive action under the Equality Act 2010. By affirming that AIHA's allocation policies were lawful and proportionate, the Court acknowledged the necessity for targeted measures to address specific community needs within the framework of anti-discrimination laws. This judgment not only provides a clear precedent for similar cases but also balances the imperatives of equality with the practical realities faced by community-focused charitable organizations.