Commercial tenants can be victims too

It is well established that if an individual suffers discriminatory treatment during an employment relationship, or with respect to the provision of goods or services, there is protection for that individual under the terms of the Equality Act 2010 (“EA 2010”). On an initial reading, it appears that the EA 2010 applies only to individuals in light of its references to “persons”. “Person” is not defined in the EA 2010 but a definition appears in the Interpretation Act 1978, which provides that in “any Act, unless the contrary intention appears, words and expressions listed in Schedule 1 to this Act are to be construed according to that Schedule”. In Schedule 1 “person” includes “a body of persons corporate or unincorporated”. The recent decision EAD Solicitors LLP and others v Abrams UKEAT/0054/15/DM concerned Mr Abrams, a member of EAD Solicitors LLP (“EAD”), a law firm operating as a limited liability partnership with a mandatory retirement age of 62. As Abrams approached 62, he resigned from EAD and set up a limited company, apparently for tax purposes, which itself became a member of the LLP. Once Abrams reached 62, EAD did not give his company any further work. Section 45(2) of the EA 2010 provides that an LLP must not discriminate against a member as to the terms on which that person is a member, in the way in which the member is afforded access to opportunities or by subjecting the member to any other detriment. Abrams argued that EAD’s actions amounted to age discrimination in respect of himself and in relation to his company. Both Abrams and the company brought claims in the Employment Appeal Tribunal (“EAT”) alleging they were discriminated against on the grounds of age. As a preliminary issue, the EAT was asked to decide whether it had jurisdiction to determine the company’s complaint in light of the fact that it was a corporate body. The company argued that section 13 of the EA 2010 states that a person can be discriminated against and a “person” includes a corporate entity. EAD argued that only an individual can have a protected characteristic and furthermore the thrust of the anti-discrimination legislation is directed towards the protection of individuals. The EAT rejected EAD’s argument that the EA 2010 only protects individuals because they alone can have protected characteristics. It held that the EA 2010 does not protect individuals based on their own characteristics but rather identifies discrimination related to a protected characteristic. It is a significant case and overturns any previous assumptions that discrimination claims can only be brought by individuals, which seemed to limit the EA 2010’s relevance to commercial property. It opens the door for claims based on the way in which a corporate entity has been treated if that treatment was as a consequence of a protected characteristic of someone associated with that corporate entity. Examples of circumstances in which claims might succeed given in the judgment include: “a company being shunned commercially because it is seen to employ a Jewish or ethnic workforce; a company that loses a contract or suffers a detriment because of pursuing an avowedly Roman Catholic ethic; one that suffered treatment because of its financial support for the Conservative Party or, say, for Islamic education; or one that was deliberately not favoured because it offered employment opportunities to those who had specific disabilities that were unattractive to some would-be contractors or because, let us suppose, of the openly gay stance of a chief executive.” Implications Part 4 of the EA 2010 concerns premises, particularly the disposal of real estate (section 33), including lettings and lease assignments (section 38 (3)), and property management, such as eviction and the use of and access to facilities (section 35). This part of the statute is not concerned with issues arising from age, marriage or civil partnerships (section 32(1)).  It may have been designed to assist residential tenants, but the decision in this case confirms the EA 2010’s wider application. Former tenants might seek compensation on the termination of their leases if they are able to argue that the termination was because of a protected characteristic. Section 34 concerns the grant of permission to dispose of premises and one can foresee claims by unhappy would-be corporate assignees of commercial leases alleging discrimination by the landlords due to a protected characteristic of an associated person. There may be excellent commercial reasons for the decisions but unless their rationale has been clearly and carefully documented it may be difficult for businesses to refute speculative discrimination claims. Sejal Raja and Simon Hartley are partners at RadcliffesLeBrasseur