Equality Act

John Bowers QC

June 2012

Equality Act 2010: Discrimination against Jews/Israelis

Equality Act 2010+Equality Act 2010 brings together disparate provisions: replaces Race Relations Act, Sex Discrimination Act etc

+Relevant protected characteristics s1, 9; Includes

a. race,

b. religion s10,

c. nationals origins;

But not politics unless philosophical belief

+4 principal claims: s14

•Direct discrimination, s13

•indirect discrimination, s19

•harassment: s26; unwanted conduct related to a relevant protected characteristic; violating dignity; hostile, degrading, humiliating, offensive environment

•victimisation s27

+Indirect discrimination looks beyond formal equality to more substantive equality of results;

criteria which look neutral on their face may have disproportionately adverse effect on people of particular nationality ethnic group;

R v Governing Body of JFS [2010] 2 WLR 153 Lady Hale at para 56 gave example of work on Friday evening; also exams on shavuot

+There may be justification for indirect but not for direct discrimination; s19(2)

+Claims may be brought by employees, workers (most independent contractors); but does not apply to volunteers, arbitrators

+Employment cases go to employment tribunal; others (eg goods facilities and services) to county court

 

Public sector equality duties s149

Public bodies must have due regard to needs

a. to eliminate discrimination

b. to advance equality of opportunity

c. to foster good relations (eg the Moti Crystal case)

Redress by judicial review

General principles

a. an act of discrimination is a tort with broadly the consequences of tort for remedy (compensation but may include injury to feelings, injunction);

b. The key question in direct discrimination is whether action is “because of protected characteristics”

Motive; intention; reason for the reason is irrelevant;

subjective reasons; relevant issue is what caused him to act as he did purpose; may be benign motivation; misguided benevolence, passive inertia, racial hatred

Para 119 Lord Kerr JFS: if the decision has consequences that are not permitted under the law, the fact that it was taken for a religious purposes will not save it from the condition of illegality;

c. A person may so treat someone even if he believes person to be Jewish and they are not; Lord Mance JFS para 85

Protection of religion

Art 9 ECHR; qualified right to manifest religion and belief in worship teaching proactive and observance; subject to limitations which are necessary in democratic society in interests of public safety, for protection of rights and freedoms of others

Court will not usually intervene in religious matters; R v Chief Rabbi ex p Wachmann [1992] 1 WLR 1036

Jews; how do we fit into the scheme?

Protected characteristic: Racial grounds include nationality, Ethnic or national origins

“Ethnic origins” was originally defined by House of Lords: Mandla v Dowell Lee [1983] 2 AC 548 a Sikh case;

a.long shared history and

b.cultural tradition of its own often associated weith religious observance;

c.other characteristics; common language and/or literature, religion, geographical origin/descent or as sense of being a minority or an oppressed or dominant group

Ethnic group may include converts and persons who marry into group provided they are accepted by members of the group.

Seide v Gillette Industries Ltd [1980] IRLR 427; racial hatred rather than religious hatred (which was not then covered)

BUT Judaism is also a religion (with several strands): Sub categories of religions; can there be discrimination by orthodox against Masorti or vice versa (may be philosophical beliefs even if not different religion).

The overlap of ethnic and religion came to the fore in the JFS case

The JFS case (the leading case)

-Under oversubscription policy, the school gave priority to children who were recognised as Jewish according to Office of Chief Rabbi (OCR), on matrilineal descent. Child’s mother had non orthodox conversion.

-JFS argued inter alia matrilineal descent is a religious test and not racial; if religious only there would be exemption on basis that JFS was school designated as having religious character under s69(3) SSFA 1998; Equality Act 2006 s5(1); the Claimant contended the discrimination was on grounds of ethnic origin

 Simplifying greatly: Majority views

Direct discrimination

“To the Jew the matrilineal descendant is a member of the Jewish family and a member of the Jewish religion. The two are inextricably linked” Lord Phillips para 43

Lord Kerr; Para 120 the terminus for Office of Chief Rabbi was a decision on a matter of religion but the route to that terminus was one of ethnic origin

 

 

Lord Mance; matrilineal is at its core a test by which orthodox Judaism identified those to be regarded as the descendants of a particular people enlarged from, time to time by the assimilation of converts that is the Jewish people whose ancestor was Jacob; that the Jewish people is also defined by its religion does not lead to a different conclusion

Minority; Lord Hope para 201; chief rabbi would say he was acting on basis of what he believed was required by orthodox Jewish religious law.

2 Law Lords decided no direct discrimination but there was indirect discrimination

Lord Hope indirect discrimination; legitimate aim; JFS had not shown proportionality

Minority of a Minority Lord Brown para 239 M’s real complaint here is that in deciding who is a Jew the OCR’s approach to conversion is misguided. That however is not an issue which is or ever could be before the court. No court would ever intervene on such a question or dictate who as a matter of orthodox religious law is to be regarded as Jewish. Lord Walker agreed

General comments

Lord Hope para 183 difficulty in this case arises because of overlap between concepts of religious and racial discrimination and in the case of Jews between ethnic Jews and Jews recognised as members of the Jewish religion. The case does not fit easily into the legislative pattern

Discrimination on grounds of nationality/national origins; a typology

1. Discrimination on grounds of politics (opposing Israeli of Government policies on poverty) is not covered; may cross over with freedom of expression

2. Discrimination against Yemeni Jews: overlap national origins, religion, ethnic group; may be dual characteristics

3. Discrimination against Israelis as a nationality/national origins; the Smadar Bakovic case

4. Discrimination against Zionists; (almost certainly) by reason of philosophical belief

5. Discrimination against non Zionist supporters of Israel; (possibly) philosophical belief

6. Discrimination against X because he invests on West Bank: may be Associative Discrimination on nationality but may be classed as political

7. Discrimination against Jews; on grounds of religion

8. An academic boycott of Israeli professors; Discrimination on grounds of nationality

9. No insurance cover to Stamford Hill dwellers: indirect discrimination?!

Exceptions for Religious organisations etc

a. Religious organisation can discriminate based solely on religious belief and practice sched 23

b. Positive action; in support of protected characteristic that have different needs; Minimising disadvantage s158 193; organisation must reasonably think members of Jewish community had specially Jewish need as to which those services cater eg Jewish Care

John Bowers QC