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The Supreme Court in Akerman-Livingstone v Aster Communities Limited  UKSC 15 gave some clarity on the approach to be used when determining proportionality under the Equality Act 2010, compared with the approach to take when considering proportionality under Article 8 of the European Convention on Human Rights. Despite being unable to rescue the appellant on this occasion, the court’s distinction may be of encouragement to litigants seeking to rely on the Equality Act in the future.
The case involved the respondent, a housing association, seeing to enforce a possession order against the appellant, an occupier of temporary social housing.
The appellant's case was that he had not been able to accept any of the multiple offers of alternative properties because of his mental disability, and that he was therefore unlawfully discriminated against in that he suffered unfavourable treatment (eviction) arising in consequence of his disability (s 15 Equality Act). He argued that if discrimination was proved the respondent's steps to evict the appellant would be unlawful under s 35(1)(b) Equality Act. The respondent's case was that there was no unlawful discrimination because the eviction was a proportionate means of achieving a legitimate aim.
The first instance judge, in dismissing the appellant's argument, commented that the test of proportionality under s 15(1)(b) was the same as when considering defences under Article 8 as that laid down in Manchester City Council v Pinnock  2 AC 104 and Hounslow London Borough Council v Powell  2 AC 186.
The Supreme Court disagreed. In her judgment, Lady Hale made it clear that there was a necessary distinction between Equality Rights and Convention rights when considering what was proportionate or not. Although agreeing that there would be instances where a 'discrimination defence' under the Equality Act could be summarily dealt with (see Lord Neuberger at para 59), it was nevertheless correct that the 4-stage test must be worked through when considering the question of proportionality (Lady Hale at para 28) in relation to the objective justification defence.
This approach sits in direct contrast to the approach of the court in Pinnock and Powell where the 'structured approach' was rejected as the means of determining proportionality in Article 8 cases.
On analysis, it can be said that this distinction is bot technically correct and a positive development in Equality rights. Although on the one hand a universal test of proportionality seems attractive, it would potentially have a negative effect on the strength of the rights enshrined in the Equality Act. The Supreme Court was correct to confirm the differences in form, purpose and application between Equality rights and Convention rights.
Equality rights and Convention rights are derived from very different sources with different purposes. Convention rights are principally safeguards for private individuals against State tyranny, born out of the aftermath of World War II and the Universal Declaration of Human Rights. This heritage is illustrated by the use of language like 'necessary in a democratic society' - referring to the overarching nature of the Convention rights.
The rights under the Equality Act 2010 have the intention of creating equal treatment by means of prohibiting discriminatory behaviour and creating obligations for positive treatment where appropriate (see Lady Hale at para 25). These rights are able to be used against private entities and not only the functions of the State. They protect indirect forms of discrimination as well as direct forms and do not contain the sweeping language of the Convention, instead adopting a more focused terminology.
When these cases are considered, it becomes clear that it is too simplistic to try to treat each respective proportionality test as one and the same. The distinction in approach must surely then be right.
Apart from being accurate, this distinction can also be seen as beneficial. One useful illustration of this is the issue of the burden of proof.
When an Article 8 defence is raised against a possession order, the Supreme Court accepted it could be 'taken for granted' that the landlord was pursuing a legitimate aim and acting proportionally (see paras 33-34), confirming the presumption in Pinnock and Powell (see Lord Hope in Powell at para 41). This presumption was justified on public policy grounds (para 29) and would 'weigh heavily in a proportionality exercise' (para 34).
The Equality Act on the other hand has a clear burden of proof provision under s 136. Lady Hale confirmed that these express provisions could not be ignored when determining proportionality, simply because the legitimate aim of the landlord might be presumed (para 34). It becomes evident that the structured approach is necessary to answer the remaining questions, including whether the likely benefit of the final outcome is disproportionate to the impact of the rights infringement in achieving it. In an Article 8 case the court expressed its reluctance in getting involved in those sorts of questions (see para 29); when Equality rights are raised, the court considered that it was 'well-equipped' to deal with the structured approach to proportionality.
Therefore, for those that would wish to rely on Equality rights it must be seen as beneficial that the Supreme Court distinguished the approaches to proportionality. If it has not made this distinction then it could be the case that Equality claims could be undermined by heavily-weighted presumptions. Instead, the robust burden of proof provisions of the Equality Act are preserved and proportionality is determined in a thorough way.
The decision of the Supreme Court may be seen as a backwards step in the evolution of discrimination rights. However, although the overall outcome may be disappointing to some, it is worth bearing in mind that the Supreme Court positively affirmed the Equality Act as giving 'extra rights' to positively bring about equal treatment.
Furthermore, the court cut ties of similarity between Article 8 and disability discrimination, allowing them to forge their own separate paths. The alternative effect could have been for Equality rights to be limited by mere association to Convention rights by the courts adopting a more restrictive social policy approach. Rather than limiting the protection afforded by these two sources of rights, the distinction allows each to develop in its own way, rather than being a hostage to the path of the development of one or the other.