Discrimination claims can only be brought by an individual. True or false?
False! According to a recent Employment Appeal Tribunal (‘EAT’) decision in the case of EAD Solicitors LLP v Abrams (UKEAT/0054/15).
The Equality Act 2010 prevents an LLP discriminating against a member by expelling the member or by subjecting them to a detriment. These types of claims can only be pursued in the Employment Tribunal.
The Equality Act also prevents a person (A) discriminating against another person (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Usually discrimination claims are brought by B (an individual) against A (a corporate person). However, this case considered the identity of person B. A ‘person’ is defined in the Interpretation Act 1978, and includes ‘a body of persons corporate or unincorporate’.
Mr Abrams was a partner and solicitor in the firm of EAD Solicitors LLP (‘EAD’). Members of EAD were required to retire at age 62. As his retirement approached, Mr Abrams set up a limited company of which he was the sole director, which would take his place as a member of the LLP. He then withdrew from the membership himself and as an individual had no ongoing contractual relationship with EAD.
When Mr Abrams reached the age of 62, EAD refused to accept services from his company. EAD also objected to the company continuing to be a member of the LLP. Mr Abrams and his company brought a claim against EAD for age discrimination. The company was able to bring a claim relying on the fact that it was associated with Mr Abrams, and had therefore been treated less favourably because of Mr Abrams’ age. It argued that this constituted unlawful discrimination.
At a preliminary hearing the Employment Tribunal held that Mr Abrams’ company could bring proceedings for direct discrimination because of the protected characteristic of someone with whom it was associated.
EAD appealed to the EAT. They argued that the Equality Act was meant to protect individuals with certain protected characteristics and not companies who could not possess those characteristics.
The EAT held that the Equality Act does not deal with individuals on the basis of their protected characteristic but identifies discrimination as being detrimental treatment caused by the protected characteristic or related to it. It held that detrimental treatment can be given to any person whether natural or legal. Accordingly there is no requirement that the person with the protected characteristic is the same person who suffers a detriment. Examples of such treatment could include, for example, a company being shunned commercially because it is seen to employ a Jewish or ethnic workforce, or a company that loses a contract because its directors are homosexual.
Whilst a company cannot seek compensation for injury to feelings, it could seek compensation for financial loss in a scenario where a contract is lost as a result of unlawful discrimination. This case also undermines longstanding assumptions that discrimination laws exist just to protect individuals.
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