Discrimination

R (on the application of E) (Respondent) v The Governing Body of JFS and the Admissions Appeal Panel of JFS and others (Appellants) [2009] UKSC 15

Tue, 02 Feb 2010 23:25:08 GMT

Supreme Court - Press Summary

BACKGROUND TO THE APPEAL
E challenged JFS’s (formerly the Jews’ Free School) refusal to admit his son, M, to the school. JFS is designated as a Jewish faith school. It is over-subscribed and has adopted as its oversubscription policy an approach of giving precedence in admission to those children recognised as Jewish by the Office of the Chief Rabbi of the United Hebrew Congregation of the Commonwealth (“the OCR”).

The OCR only recognises a person as Jewish if: (i) that person is descended in the matrilineal line from a woman whom the OCR would recognise as Jewish; or (ii) he or she has undertaken a qualifying course of Orthodox conversion. E and M are both practising Masorti Jews. E is recognised as Jewish by the OCR but M’s mother is of Italian and Catholic origin and converted to Judaism under the auspices of a non-Orthodox synagogue. Her conversion is not recognised by the OCR. M’s application for admission to JFS was therefore rejected as he did not satisfy the OCR requirement of matrilineal descent.

E challenged the admissions policy of JFS as directly discriminating against M on grounds of his ethnic origins contrary to section 1(1)(a) of the Race Relations Act 1976 (“the 1976 Act”). Alternatively, E claimed that the policy was indirectly discriminatory.

The High Court rejected both principal claims. The Court of Appeal unanimously reversed the High Court, holding that JFS directly discriminated against M on the ground of his ethnic origins. JFS appealed to the Supreme Court. The United Synagogue also appealed a costs order made against it by the Court of Appeal.

JUDGMENT
The Supreme Court has dismissed the appeal by The Governing Body of JFS. On the direct discrimination issue, the decision was by a majority of five (Lord Phillips, Lady Hale, Lord Mance, Lord Kerr and Lord Clarke) to four (Lord Hope, Lord Rodger, Lord Walker and Lord Brown). The Majority held that JFS had directly discriminated against M on grounds of his ethnic origins. Lords Hope and Walker in the minority would have dismissed the appeal on the ground that JFS had indirectly discriminated against M as it had failed to demonstrate that its policy was proportionate. Lords Rodger and Brown would have allowed JFS’s appeal in its entirety. The Supreme Court unanimously allowed in part the United Synagogue’s appeal on costs.

McConkey and another (Appellants) v The Simon Community (Respondents) (Northern Ireland), [2009] UKHL 24

Wed, 20 May 2009 13:43:00 GMT

Messrs McConkey and Marks were both unsuccessful in employment applications to the Simon Community. The appellants stated that this was because of their convictions for activities in support of the Republican cause in 1975 and 1992 respectively. At all material times in 2000 and 2002, it was agreed that the appellants no longer approved of, or accepted, the use of violence for political ends connected with the affairs of Northern Ireland.

The appellants complained to the Fair Employment Tribunal that they had been discriminated against on the ground of their former political opinion. The Tribunal rejected their complaints. The appellants appealed by way of case stated, but the Court of Appeal dismissed their appeals.

The House was satisfied that the Community did not refuse to employ the appellants because of their former political beliefs, but because of a concern that employing them might pose risks for the vulnerable people who are cared for by the Community. Leave to appeal was granted, however, in order to give the House the opportunity to consider the meaning and application of the provisions of the Fair Employment and Treatment (Northern Ireland) Order 1998 relating to discrimination on the ground of political opinion.

Per Lord Rodger of Earlsferry, the real question before the House was whether the 1998 Order made it unlawful for people who had been deeply and immediately affected by the violence and who had not yet felt able to “move on” to refuse to employ, or to serve, someone who once approved of the use of violence for political ends in Northern Ireland, but now no longer did so. In his view there was nothing surprising, far less absurd or outrageous, in holding that the 1998 Order allowed such people to refuse. To hold otherwise would be to force those vulnerable individuals to associate with people who approved of the use of the very kind of violence that had blighted their lives.

For these reasons, even if the Simon Community did indeed dismiss the appellants because of their former approval of the use of violence for political ends connected with the affairs of Northern Ireland, it was lawful for the Community to do so.

The House unanimously dismissed the appeals.

R (on the application of RJM) (FC) (Appellant) v Secretary of State for Work and Pensions (Respondent), [2008] UKHL 63

Wed, 22 Oct 2008 17:43:00 GMT

The Income Support (General) Regulations 1987 (“the 1987 Regulations”) entitle disabled persons to a disability premium, except if they are “without accommodation". By this appeal, the appellant, RJM, seeks to establish that the exclusion from disability benefit of disabled persons without accommodation is contrary to art. 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

As a result of his mental health problems, RJM was incapable of working. He received income support, which initially included disability premium. In August 2004, payment of disability premium ceased to be made to RJM, on the ground that he had become homeless, although he continued to be paid his personal allowance. The withdrawal of disability premium was effected pursuant to para 6 of Sched. 7 to the 1987 Regulations.

The Secretary of State put forward a rationale for this approach. First, the basic personal allowance is intended to cover most personal expenses. The disability premium is intended to cover additional expenses incurred by the disabled, such as additional heating costs, which, the Secretary of State considers, are less likely to be incurred by those without accommodation. Second, the Secretary of State does not wish to provide money to keep disabled people in their vulnerable position, albeit that it would potentially make that vulnerable position slightly more manageable. He prefers to target resources and assistance towards getting them out of that position, and he points to initiatives aimed at doing this.

The House of Lords unanimously dismissed RJM’s appeal holding that the rationale advanced by the Secretary of State for the policy of discrimination enshrined in the 1987 Regulations has been shown to have legitimate aims and to be, in its potential impact, sufficiently proportionate in its relationship to those aims to be regarded as justified.

Mayor and Burgesses of the London Borough of Lewisham (Appellants) v Malcolm (Respondent), [2008] UKHL 43

Wed, 25 Jun 2008 12:34:00 GMT

This appeal raises difficult questions as to the correct construction or application of provisions of the Disability Discrimination Act 1995 (“DDA”).

The respondent, Mr Malcolm, suffers from schizophrenia. He has had the condition for some time and takes medication for it. For a short time, he did not take his medication and during that time he sub-let the flat that he occupied under a secure tenancy from the appellant Council. The effect of the sub-letting, and his consequent relinquishing of his occupation of the flat, was that his secure tenancy became an ordinary contractual tenancy without any security of tenure. It was a term of his tenancy that sub-letting was prohibited. At the time of the sub-letting Mr Malcolm had been actively engaged in pursuing the Right to Buy. However, this statutory right, along with the security of tenure that accompanies a secure tenancy, was lost by the sub-letting and in July 2004 the Council served on him a four weeks notice determining the contractual tenancy. Mr Malcolm did not deliver up possession of the flat and in November 2004 the Council commenced possession proceedings against him and the sub-tenants who were then in occupation. The sub-tenants subsequently vacated the flat, Mr Malcolm moved back into occupation and the possession proceedings have continued against Mr Malcolm alone.

Mr Malcolm argued that (1) any breach of the terms of the tenancy had been caused by his schizophrenic condition; (2) his schizophrenic illness constituted a disability for the purposes of the DDA; (3) “the reason why the claimant is seeking possession is because of the … disability”; and (4) the Court was precluded by the DDA from making any order for possession against him.

Mr Malcolm relied upon ss.22 and 24 in Part II of the DDA and was unsuccessful at first instance but successful before the Court of Appeal. The Council appealed to the House of Lords.

The House of Lords held (unanimously) that Mr Malcolm had been disabled at the relevant time. However, they went on to hold that there had been no unlawful discrimination against him because there was no evidence that the Council knew about his disability.

What the House of Lords failed to reach agreement on (Baroness Hale dissenting) was the correct comparator to be used in disability discrimination cases. The majority held that Mr Malcolm should be compared to an able-bodied man who had sub-let his flat. Baroness Hale argued that the comparator should be an able-bodied man who had not sub-let.

In coming to their decision, the four Law Lords in the majority accepted that their verdict would restrict the scope of disability discrimination legislation to direct discrimination. Baroness Hale believed that in reaching her conclusion, she was faithfully following the intention of Parliament.

The appeal was allowed and the judge’s order reinstated.