Tag Archive for 'discrimination'

Institutionally racist

Published
by
NL
on 14 August 2008
in job
. 6 Comments

We are not institutionally racist. SRA October 2007

This is not housing law related, but it is of significance to many in the sector.

Lord Ouseley, the former head of the Commission for Racial Equality, was jointly commissioned by the Solicitors Regulatory Authority and the Society of Black Lawyers to conduct an independent investigation into the SRA’s treatment of BME solicitors and firms, in a perhaps belated response to repeated complaints that BME firms were disproportionately targeted for interventions and that complaints and disciplinary proceedings were also handled in a discriminatory way. Even at the level of referrals of law students for character or suitability assessments, black and asian students are disproportionately represented.

The Guardian has obtained a copy of the report (and the Times also reports, more moderately). It makes for very uncomfortable reading for the SRA.

The report finds that the very way the SRA operates has ‘potential discriminatory effects’, and that

Potentially this still leaves the SRA open to the charge of institutional racism, as its policies, procedures, practices and actions, however unintended, can be seen to have disproportionate detrimental and discriminatory outcomes for BME solicitors

Awareness of the problem and progress on diversity issues at the the SRA is negligible, as management

regard the commitment to equality and diversity as superficial, tokenistic and unimportant.

And some SRA staff are quite simply racist:

Not to be under-estimated is the level of prejudice and bias which exists among personnel in this and other similar organisations

such that

some ethnic minority lawyers are judged to be guilty through racist stereotyping before an investigation is started (Guardian precis)

The report makes 39 recommendations, and demands ‘urgent, active and swift implementation’. Any chance of that? Well the current SRA leadership might have problems as the report found that:

The SRA at present lacks the drive and the equality and diversity competence within its managerial and leadership spheres to make the changes happen.

This is a pretty devastating condemnation of the practices and culture of the SRA. Let us hope it marks a watershed moment.

On the naughty step

Published
by
NL
on 26 May 2008
in whatever
. 2 Comments

On the very crowded naughty step this week are the Solicitors Regulation Authority, the Law Society and, umm, firms of solicitors in general.

Shahrokh Mireskrandari, senior partner of Dean and Dean, has launched a claim for £10 million against the SRA and the Law Society at an employment tribunal, alleging racial and religious discrimination, harassment and victimisation by pursuing ‘numerous’ complaints against the firm over the last 5 years, only one of which produced a, minor, adverse finding. He accuses the Society and SRA of acting

unjustifiably, oppressively, disproportionately and outside their powers.

Meanwhile the SRA has, under pressure, set up a working party to investigate why 62.8% of interventions by the SRA in 2006 were against black, asian or unknown ethnicity solicitors, while 37% were against white solicitors, who make up 78.6% of all solicitors. (I’m very curious about the remaining 0.2% of interventions.)

On the topic of unjustifiable conduct, the Law Society’s own equal pay review revealed the shocking results that the median income for ethnic minority solicitors was 20% less than that of white solicitors. Even once factors like grade, gender, firm size, region, post-qualification experience and hours worked were taken into account, the gap remained at 17%.

Women solicitors earned 32% less than male solicitors. Even after grade, firm size, PQE, hours worked, work breaks taken and area of law were taken into account, the gap remained 7.6%.

The figures are appalling, way beyond any ‘accidental’ disparities. If they are accurate, the figures are a pretty damning indictment of our ‘meritocratic’ profession.

That said, a closer look at the sample size might cause a small doubt over the reliability of the survey.

Researchers quizzed 1,201 solicitors, 9% of whom were BME solicitors and 43% were female – described as a representative sample after weighting. The overall response rate was 76% and 52% for the salary questions.

On my maths that means 109 BME solicitors, of whom 56.7 answered the salary question. That strikes me as small sample and one that is pretty easily distorted, even using a median. This doesn’t mean the findings are wrong though, not at all.

It also suggests a sample of 516.3 women solicitors of whom 268.5 answered the salary question, which ought to be more reliable.

Disability discrimination - the comparator

Published
by
NL
on 20 January 2008
in Housing law
. 2 Comments

Following on from the previous post, and the detailed discussions that took place in the comments to that post, I wanted to try to clarify for myself the key element of establishing discrimination, which hopefully may be of use for others. In particular, I want to address who is the comparator against whom the treatment is seen to be less favourable. Bear in mind that this is a housing lawyer interpreting an employment law case, so clarification or endorsement from any passing employment lawyers is welcome.

In Malcolm, the Court of Appeal held it was bound by its own judgment in Clark v TDG Ltd (t/a Novacold) [1999] EWCA Civ 1091.

The judgment in Novacold points out that the definition of discrimination in the DDA 1995 is different to previous acts, in that it does not draw a distinction between direct and indirect discrimination, contains a defence of jusitifcation and, crucially:

it does not replicate the express requirement of the 1975 Act (section 5(3)) and the 1976 Act (section 3(4)) that, when a comparison of the cases of persons of different sex or persons of different racial groups falls to be made, the comparison must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

The crux is the interpretation of DDA 1995  s.5, which then read:

(1) For the purposes of this Part, an employer discriminates against a disabled person if -
(a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply;

Unless the treatment is justified, of course.

The phrasing of s.5(1)(a) is effectively the same as s.24(1) as addressed in Malcolm. The comparator for establishing less favourable treatment is ‘others to whom that reason does not or would not apply’. The question is the meaning of ‘that reason’.

The Respondents in Novacold argued that ‘that reason’ included the relation to the disability, such that the comparator would be a person who was, say, equally incapable of performing their job, but for a reason that did not relate to disability.

The appellant argued that ‘that reason’ referred specifically to the reason for the treatment (the first three words of s.5(1)(a)), the inclusion of ‘which relates to the…disability’ being simply in order to specify the link which enables the complaint. On this basis, the comparator would be a person who was capable of performing the job.

The Court’s interpretation of the, admittedly ambiguous, wording of the statute takes in the different provisions in the 1975 and the 1976 Acts, and the express requirement of comparison with the treatment of other persons “whose circumstances are the same” stipulated in victimisation cases by section 55(1) (a) of the 1995 Act. This leads it to agree with the latter view.

‘That reason’ refers to the reason for the treatment, not the link to the disability. The proper comparator is someone for whom the reason for the treatment does not apply, not someone who is the same situation but without a link to a disability.

The same phrasing as s.5(1) is found in s.24(1), so that the same interpretation arguably must be followed, as the same phrasing cannot be interpreted in different ways in the same statute, or at least not without causing huge problems.

In the case of Malcolm, this works as follows. The reason for Lewisham’s claim for possession was Mr Malcolm’s illegal sub-let, thereby ending his secure tenancy.  That reason was related to Mr Malcolm’s disability. To establish whether this was less favourable treatment, the proper comparison is with someone to whom the reason for the treatment does not apply - i.e someone who has not illegally sub-let and ended their secure tenancy. These comparators exist. Mr Malcolm was undoubtedly treated less favourably than them, so discrimination is established. Lewisham didn’t argue justification.

There are times when this comparator will not exist, as was the case in Richmond Court v Williams (see previous post). In Richmond, it appears that the ‘reason for the treatment’ was of general application, i.e. that a blanket ban on additions to the common parts meant that there was no occupant/leaseholder of the building to whom ‘that reason’ did not apply, no occupant who wasn’t refused adaptations. There was therefore no possible comparator to whom ‘that reason’ did not apply. As a result, there was no less favourable treatment with the comparator and therefore no discrimination.

Having thought about it, this is not a departure from the Novacold approach, as Justin Bates suggested in the article discussed in my last post, and as I first thought. It is not a departure because the Novacold approach to comparators is deployed, with the result that there is no appropriate comparator to be found. Understood in this way, Richmond is not an alternative to Malcolm, or the Novacold based reasoning, but rather an example of Novacold reasoning in operation.

In this light, and contra Justin’s suggestion, the reasoning in Richmond is not the same as saying that, because Lewisham would treat any tenant who illegally sublet the same way as Mr Malcolm, there is no discrimination. As mentioned above, the illegal sublet is the reason for the treatment, and there are plenty of comparators for whom that reason does not apply - Lewisham tenants who have not illegally sublet.

Novacold might be an employment case, but the interpretation of statute in the analysis of ‘that reason’ is not specifically employment related. If the House of Lords is going to change Malcolm in this aspect, it will be making a major change for absolutely all disability discrimination cases.

Article Series - Disability Discrimination

  1. Catching up - Disability Discrimination and possession
  2. Disability and tenancy - More on Malcolm
  3. On impotent landlords and disability.
  4. Disability discrimination - the comparator
  5. DDA and mandatory possession
  6. S v Floyd and a disability defence
  7. Adjourning pending Malcolm in the Lords
  8. And now Malcolm!
  9. Malcolm in brief
  10. Comments on Malcolm in the Lords
Previous in series: :Next in series

Equal Pay and Moral Dilemmas?

Published
by
NL
on 2 January 2008
in whatever
. 2 Comments

This story rumbles on, with several features in today’s Guardian, here, here, and here. The paper sees fit to pitch it as something of a moral dilemma, before finally plumping for one side.

The terms of the ‘dilemma’ go something like this.

Very large numbers of women, working for local authorities and schools, usually at the low paid end of the scale, turn out to have been unlawfully paid less than male comparators for many years. Quite how many is still not known because only 47% of Councils have completed pay reviews, despite a deadline of March 2007. However, the Local Government Employers organisation estimate that the underpaid could be in the area of 40% of all Council staff.

Unions have made deals with some Councils for back pay and forward adjustment and are negotiating with others. The Local Government Employers organisation estimates the costs of this at £2.8 billion. The Councils are saying that this, because it is not being funded by the government, will hit services.

Even worse, thousands of women are making independent claims for pay discrimination, some against Councils that have settled with the unions. Both the Councils and the unions are up in arms about quote ‘no win, no fee’ unquote lawyers taking these cases, because:

  • They are threatening the basis of negotiation between Councils and Unions, collective bargaining;
  • It is not necessarily in the Claimants’ best interests, that of their colleagues or the community;
  • They are clogging up the Tribunal system, delaying claims;
  • They are delaying the Councils’ abilities to deliver on equal pay.

The real basis of the objections is, of course, money. The settlements reached so far are usually below, sometimes grossly below the value of claims going on awards already made by the Tribunals. An example in the Guardian is a settlement of £5,000 that was rejected and a claim brought. The Tribunal awarded £32,000. The Councils say that inevitably there will be severe cuts in services and redundancies if they have to fund the ‘increased’ level of back payment.

The ‘no win, no fee’ lawyers figurehead is Stefan Cross, who apparently has about 30,000 claims underway and who is preparing a High Court claim against the GMB for sex discrimination for failing to represent its female members properly.

Let me pause to note a couple of issues that struck me in the Guardian reports. First, the GMB itself has issued 25,000 equal pay claims in the Tribunals, which one imagines might go some way to ‘clogging up’ the system.

Secondly, in the case mentioned above, with the award of £32,000, it is reported that after tax and lawyer’s fees the woman received £18,000, which by my rough and ready reckoning means costs and disbursements in the region of £7000. Tribunals, as far as I recall, do not generally make costs awards. If the client is paying the costs of the case, then this is not a CFA. As contingency fees are illegal, this can only be a form of deferred fee arrangement, a conclusion supported by reported costs of £500 per 6 months charged to claimants who pull out. This is not a no win, no fee set up. I’ll come back to this later.

In response to the charges from the Councils and unions, the independent lawyers point to the slowness of the Councils and unions in dealing with the issue, with the low level of settlements, and the inactivity of many Councils altogether. The women involved were illegally and discriminatorily underpaid. They are entitled to back payment for the last 6 years in full.

So where is the moral dilemma? There has been discrimination on pay which is both illegal and immoral. The only morality lies in full restitution, or at least as full as the law allows. If the women choose, as realistically their best option to get close to this, to sign up for a deferred fee arrangment, it is hard to see a moral objection - particularly on the part of Councils that have effectively enforced the subsidization of their services by these women.

The Councils and unions try to cast this as self-interest in ‘getting as much as they can’ which will damage services and ongoing employment. This is, of course, nonsense, although there may be well be a significant financial blow to the Councils. The women are entitled to the full amount. The Councils are effectively insisting that the women continue to subsidise them.

What it is, of course, is real politik. Rather than actually attempting to sort out the mess - remember over half of Councils still haven’t carried out an equal pay review - or present a coherent face to central government on the situation, both the Councils and the unions prefer to blame self-interest and ‘no win, no fee’ lawyers, raising the spectre of public money disappearing into lawyers’ pockets (as with the miners compensation scheme).

Assuming that I am right about the deferred fee arrangments, this is simply inaccurate. But it is notable that ‘no win, no fee’ is now a synonym for grubby ambulance chasing, opportunistic lawyers and is being used in spin for that effect.

The Guardian editorial, unsurprisingly, plumped for the side of the Councils, (after raising the miners compensation scheme as a precedent to be avoided!)

Crucially, the courts are better at resolving absolute rights and obligations than trading off competing priorities. But balancing objectives is what sound decision-making is all about when significant public expenditure is involved.

says the Guardian, gloriously managing to confuse Councils’ limited decision-making ability under statute with the ability to, well, actually change the law and, just to muddy matters further, suggesting the Courts could make lower awards if they wanted and if they took the Councils’ situation into account. The editorial adds

‘No move to make the settlement more generous [sic] should be made without taking into account the effect on pupils and patients… The imperfect compensation on offer can help atone for the wrongs of the past’.

Unfortunately for the Guardian, it is not a question of ‘generosity’ but of legal entitlement. The imperfect compensation is not only not (yet) on offer to a majority of the underpaid, but also means that the lowest paid women are told to continue to subsidise Councils, (in the example above, it would have been to the tune of £27,000). I wonder what Polly Toynbee would make of that?

Stop Equal Pay Claims - EOC

Published
by
NL
on 22 September 2007
in job
. 0 Comments

I was, to put it demotically, gobsmacked by the content of a ‘warning’ from the Equal Opportunities Commission that the Employment Tribunal system is creaking under the weight of claims brought by those naughty ‘no win no fee’ solicitors. When they have exhausted the public sector, says Chair Jenny Watson, they will turn on the private sector.

And now the truly jaw dropping part:

The majority of cases involve local authorities, but the commission says the private sector is just as vulnerable to claims.

It warns that “no win, no fee” lawyers will continue to fuel the number of women challenging employers. The commission suggests a new system in which employers must agree to check their pay system for discrimination to ensure it is fair.

In return they would get breathing space - a period of two to three years when they would not have to face any individual pay claims. The Commission’s chairwoman, Jenny Watson, said: “In return for accepting a legal obligation to check their pay systems are free from discrimination and taking robust steps to put their house in order should they find they have a problem, we think employers should have some breathing space from individual claims for a limited period. “This approach - what we’re calling a ‘protected period for transitional arrangements’ - is the kind of modern approach that’s needed.”

So, the system is collapsing under the weight of equal pay claims. This is not because the public and private sector persist in unlawful pay discrimination, it is because of the ravening hordes of no win no fee lawyers bringing cases. That these cases are merited and the claims largely successful is beside the point.

Rather than improve or enlarge the system so that unlawful pay discrimination can be adressed, the answer is to offer firms a moratorium on claims while they have a bit of a think about maybe not indulging in pay discrimination. The implicit threat being that if they don’t have a bit of think, the ravening hordes will be waiting, clawing at the door for when the moratorium period ends.

And this, astonishingly, from the Equal Opportunities Commission itself. The EOC’s website boasts the motto:

The Equal Opportunities Commission is working to eliminate sex discrimination in Britain today. If women and men had equal chances in life, things would be different. We’re working on it…

Apparently not by enforcing the law.

Whether this approach persists when the EOC vanishes into the Blob-like CEHR, we will have to wait and see.

Disability and tenancy - More on Malcolm

Published
by
NL
on 15 September 2007
in Housing law
. 21 Comments

I posted on Lewisham v Malcolm ten days ago. Since then a couple of commentors have raised issues and Tessa has posted on the implications of the case at Landlord Law. So it seemed worth a further look. The caveat is that what follows is my understanding of the Judgment and so is entirely capable of being wrong.

Tessa’s post makes some suggestions that I don’t think I agree with in terms of the Judgment. Tessa says:

The Judge refers in paragraph 52 to two County Court decisions, one of being a case where a Judge refused to make an order under s21 where the tenant was disabled, as examples of courts happily adapting to the DDA 95 without difficulty.

The thought of landlords being unable to evict tenants under section 21 because of the DDA will send a shiver down the spine of all private landlords, and may well result in a private determination not to knowingly let to any disabled tenant in future. This will do nothing to help the prospects of the disabled (particularly those suffering from mental illness) obtaining accommodation in the private sector.

Firstly, the reference at para 52 is to two examples put forward by Counsel for Mr Malcolm as examples of the Court’s adopting the DDA “without insuperable difficulty”. Lady Justice Harman does not criticise this assertion, but does not adopt it either.

Secondly, and more importantly, we are not given details of the s.21 case, Community Housing Association v Wye. However, I can only conceive of such a verdict being reached in a particular way.

I think that Malcolm is clear that the operation of the DDA is distinct and does not amend Housing Act 1985. By extension, neither will it amend Housing Act 1988. So it is not the case that there is suddenly a defence to a s.21 Possession claim within the terms of HA 1988. It is not the case that the Courts suddenly have the power to consider reasonableness, or to require additional grounds for possession to be met.

However, where an eviction is sought ‘for reasons related to the tenant’s disability’, then the DDA is engaged and a defence not to the possession claim, but to the lawfulness of bringing the claim is possible. S.21 Possession claims do not require grounds, so I can only imagine that the tenant was able to adduce sufficient evidence that the landlord was seeking his/her eviction for reasons related to his/her disability, without justification. This is independent of the kind of possession proceedings brought (s.21, s.8 or whatever). Thus the s.21 claim would be unlawful. Granted, this is applying the logic of Malcolm to a prior case, but even so it seems likely.

In my opinion, this is not an unwarranted interference with the private landlord’s freedom to gain possession under s.21. This is exactly the kind of discriminatory behaviour the DDA was aimed at.

As far as I can see, this is NOT a general prohibition on possession claims against and eviction of disabled tenants. It is not an interference with s.21. It is a defence of unlawfulness where the s.21 claim has been made for reasons related to the tenant’s disability.

Having said that, I completely agree with Tessa that if landlords do get the wrong idea and stop letting to disabled people, that would be a Bad Thing. This is also the kind of thing that myths quickly grow up about, so clarity about the effect of the DDA is vital.

A commentor on my previous posted asked simply, either in hope or fear, whether this meant disabled tenants with rent arrears couldn’t be evicted. The above contains the answer, which is no, depending.

William Flack commented on the previous post about the position that Mr Malcolm was left in by the Judgment, as his tenancy was not revived. LJ Arden addresses this at para 121 and 122. As the DDA defence does not override HA 1985, it remains the case that Mr Malcolm’s secure tenancy ended with the illegal sublet. As LJ Arden notes, whether he then has a contractual tenancy depends on whether the Notice to Quit was unlawful as well as the Claim for Possession. If it was unlawful, he likely has a contractual periodic tenancy, if it was not, he is likely to be a tolerated trespasser.

But I can’t quite see how an application for revival of tenancy could be made. There is no possession order to vary, no proceedings within which a s.85 application can be made.

As the DDA s.22(3)(C) refers solely to eviction, not the determination of tenancy, and as the Court of Appeal was divided over the lawfulness of the Notice to Quit (on grounds of whether knowledge of disability was required by the landlord for the act to be unlawful), Mr Malcolm’s status is unclear and likely to remain so. If the possession case had been about breach of the tenancy agreement or any other ground other than statutory determination of the secure tenancy under HA 1985, the position would be much clearer and simpler.

That turned out to be longer than I thought it would be. I’d better be right, after all that.

Article Series - Disability Discrimination

  1. Catching up - Disability Discrimination and possession
  2. Disability and tenancy - More on Malcolm
  3. On impotent landlords and disability.
  4. Disability discrimination - the comparator
  5. DDA and mandatory possession
  6. S v Floyd and a disability defence
  7. Adjourning pending Malcolm in the Lords
  8. And now Malcolm!
  9. Malcolm in brief
  10. Comments on Malcolm in the Lords
Previous in series: :Next in series

Catching up - Disability Discrimination and possession

Published
by
NL
on 4 September 2007
in Housing law
. 11 Comments

Time for some substantive law at last. I missed this one while I was on holiday and have just had it brought to my attention.

LB Lewisham -v- Malcolm & Disability Rights Commission (Intervener) [2007] EWCA Civ 763. A very interesting case on the application of the Disability Discrimination Act 1995 to a possession case, well worth reading in full.

Of note:

i) Where a secure tenancy has been determined by a tenant’s action related to their disability, that determination persists as the DDA cannot rewrite the HA 1985.

ii) Where the action determining the secure tenancy is related to the disability, subsequent service of a Notice to Quit (majority decision) or alternatively pursuit of a possession claim by the landlord is unlawful. (Unless discrimination can be justified)

iii) The Court cannot make a possession order where the eviction would be unlawful under the DDA (majority) or in reliance on an unlawfully served Notice (minority)

iv) This is so regardless of actual knowledge of the disability by the landlord (a 2:1 majority decision)

v) Whether the determining action relates to the disability is a lesser test than causation

vi) Noted that the landlord’s advocate has a duty to the Court in possession proceedings against a disabled tenant to draw the Court’s attention to the fact that the act relied upon by the landlord is unlawful. This is so where the tenant has a defence under the DDA even where the tenant is not present/represented in Court.

vii) DDA s22(3)(c) does not only apply where the tenant has security of tenure. It applies to an occupier facing evcition regardless of status.

Lots to think about here.

Article Series - Disability Discrimination

  1. Catching up - Disability Discrimination and possession
  2. Disability and tenancy - More on Malcolm
  3. On impotent landlords and disability.
  4. Disability discrimination - the comparator
  5. DDA and mandatory possession
  6. S v Floyd and a disability defence
  7. Adjourning pending Malcolm in the Lords
  8. And now Malcolm!
  9. Malcolm in brief
  10. Comments on Malcolm in the Lords
:Next in series