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The Supreme Court recently considered whether the tests were the same under the European Convention on Human Rights (ECHR) and the Equality Act 2010 (EqA) in respect of repossession and discrimination arising from disability.
Article 8 of the ECHR covers the right to respect for a person's home. Section 35(1)(b) of the EqA states that a person must not discriminate against another who occupies premises by evicting them (or taking steps to do so). This seeks to prevent eviction from a property where eviction is considered to be unfavorable treatment for the purposes of section 15 of the EqA, discrimination arising from disability.
In Akerman-Livingstone v Aster Communities Limited, the Appellant suffered from severe chronic post-traumatic stress disorder (PTSD) which affected his ability to move house. The Respondent had tried to rehouse the Appellant 11 times before seeking to repossess the flat in which he lived. The Appellant argued that the repossession order should not have been granted.
In respect of whether the repossession order should have been granted, the Supreme Court considered the proportionality tests under Article 8 of the ECHR and section 15 and 35(1)(b) of the EqA.
In respect of Article 8, the potential interests of each party needs to be considered before making a decision, which more often than not would weigh in favour of a Housing Association. However, the EqA requires a more detailed fact finding procedure in order to ascertain whether unfavourable treatment took place as a result of disability and whether the treatment was a proportionate means of achieving a legitimate aim.
The Supreme Court held that the right to equal treatment under the EqA is in addition to any rights under the ECHR. All occupiers have the right to respect for their home, however those with disabilities have additional rights in terms of the accommodation that they occupy under the EqA.
Whilst this case is not in an employment law context, the principals relating to the EqA will still be applicable in an employment setting where accommodation is provided to employees.
Employers should act with caution when bringing employment to an end where this relates to ill health and/or disability, which also results in the termination of the employee's right to occupy accommodation. In these situations, employers should show proportionality by balancing the legitimate aims of the business with the impact to the disabled employee.