Greenwich LBC sees off equality challenge
Greenwich Community Law Centre (the law centre) once again failed to overturn a decision by Greenwich London Borough Council (the council) after the law centre was not reappointed following a recommissioning exercise. On 24 April, the Court of Appeal, in upholding the 21 December 2011 decision of Cranston J, found that the council had not breached the public sector equality duty in section 149(1) of the Equality Act 2010. The lead judgment in R (Greenwich Community Law Centre) v Greenwich London Borough Council  EWCA Civ 496 was given by Elias LJ. Ward and Black LJJ agreed.
As Elias LJ noted, the law centre (which covers mainly immigration, welfare benefits, housing, employment and debt) ‘provides free legal advice and assistance to some of the most vulnerable people in… Greenwich…’. However, following commissioning and recommissioning exercises, the law centre was unsuccessful in winning any work for which it had applied. While the recommissioning was conducted in the context of an approximate 30% cut in overall voluntary sector grant availability (following the October 2010 Comprehensive Spending Review), an equality impact assessment (EIA) had been prepared and officers had also reported on the principles underpinning the objective of helping the vulnerable. These principles included: the advice mix should meet the council’s needs-based priorities; a range of accessible delivery points with outreach facilities must be included to ensure availability of advice throughout the borough; and a single agency would provide general help and advice which would then be referred to the appropriate specialist agency which would operate as a centre of excellence. It was specified that 75% of the advice should be directed at priority groups.
While the council’s cabinet agreed recommendations to award the relevant work to a provider other than the law centre, nevertheless, under the council’s overview and scrutiny arrangements, two councillors sought clarification as to whether the recommendations fully took into account the geographical spread of advice centres. This resulted in a further cabinet meeting which considered another officer report as well as additional submissions from the law centre. It was pointed out that the evaluation panel had directly considered accessibility and geographical spread when appraising and scoring applications, and officers were confident that successful bidders would be able to deliver an accessible service across the borough, targeted towards priority groups. In the circumstances the cabinet reaffirmed its previous decision.
Decision of the Court of Appeal
The court noted (among other things) the requirement that, under section 149(1) of the Equality Act 2010, a public authority must in exercising its functions have due regard to three considerations. These are the need to: (a) eliminate discrimination, harassment, victimisation and any other conduct prohibited by or under the act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and (c) foster good relations between persons sharing a relevant protected characteristic and those who do not. Protected characteristics (per section 149(7)) are: age; disability; gender reassignment; pregnancy and maternity; race; religion or belief; and sex and sexual orientation.
The law centre contended that the council’s cabinet had taken the final decisions in the matter without any compliance with the section 149 duty. Consequently, it was submitted, the contract awards should be unravelled and the exercise recommenced so as to give the law centre a further chance to compete for one or more of the contracts.
In considering the issues, Elias LJ emphasised that the court needed ‘to ask whether as a matter of substance there has been compliance’. For ‘it is not a tick-box exercise’ and the courts must ensure that they do not micro-manage the exercise. And ‘it is only if a characteristic or combination of characteristics is likely to arise in the exercise of the public function that they need be taken into consideration’. For in the court’s view, ‘while the council has to have due regard to all aspects of the duty, some of them may immediately be rejected as plainly irrelevant to the exercise of the function under consideration – no doubt often subliminally and without being consciously addressed’.
In the circumstances, the court considered that the council not only had due regard to the implications of the decision on priority groups with protected characteristics but ‘it actually structured its policy so as to ensure that they were the principal beneficiaries of such funds as remained available’. Elias LJ pointed out that Cranston J had ‘aptly remarked’ that ‘the logic of the tendering exercise meant that the performance of the duty was integral to the outcome’.
While the public sector equality duty has worthy aims, it is often being used as the first weapon of choice by those unhappy with local authority decisions. A look at any of the relevant judgments will illustrate the painstaking and detailed processes now required of authorities to demonstrate their compliance with the duty. Each sub-atomic particle is subject to minute forensic scrutiny by those seeking to overturn the decision in question. However, as Elias LJ pointed out, while the court must ask whether there has been compliance in substance with the duty, this is not a tick-box exercise and courts should not micro-manage. And (per the decision of the Court of Appeal in R (Brown) v Secretary of State for Work and Pensions and another  EWHC 3158), while the circumstances may point strongly in favour of undertaking a formal equality impact assessment, that is not a statutory requirement.
It is understandable for affected organisations to use any weapon at their disposal to challenge decisions adverse to them and their stakeholders. However, the fact is that local authorities do have to make significant and ongoing financial savings. And although seeking to force an authority to retake a decision may defer an unwelcome outcome for a while, ultimately, after spending yet more public money, the authority in question is likely to be able to achieve its original objective by addressing any identified decision defects. But while securing compliance with sound practice is clearly a good thing, that cannot be said if a challenge is an expensive and ultimately pointless merry-go-round exercise.
Age is a ‘protected characteristic’ under section 4 of the Equality Act 2010. However (by section 13(2)), where ‘the protected characteristic is age, A does not discriminate against B if A can show A’s treatment of B to be a proportionate means of achieving a legitimate aim’. But what exactly does that mean in this context? The Supreme Court helpfully gave some clarification in its 25 April decision in Seldon v Clarkson Wright and Jakes  UKSC 15.
This concerned a law firm partner who, against his wishes, was required to retire at 65 in accordance with the firm’s partnership agreement. The firm had argued (among other things) three ‘legitimate aims’ for its policy which were accepted by the employment tribunal (ET). These were: (i) to give associates an opportunity of partnership within a reasonable time and thereby an incentive to remain with the firm; (ii) to facilitate workforce planning by knowing when vacancies were to be expected; and (iii) to limit the need to expel underperforming partners, thus contributing to a congenial and supportive culture within the firm. Nevertheless, while accepting the legitimacy of these aims, the Employment Appeal Tribunal held that the ET had failed to consider whether the aims could have been met by a retirement age other than 65 and remitted the case on that sole point. When the Court of Appeal dismissed Mr Seldon’s case, he brought it before the Supreme Court where Lady Hale gave the lead judgment.
While the matter fell to be determined under the Employment Equality (Age) Regulations 2006 (SI. 2006 No. 1031) by which the UK transposed Council Directive 2000/78/EC (the directive) into UK law concerning age discrimination, the same issues arise under the Equality Act 2010, which replaced those regulations.
Lady Hale said that the UK has chosen to give employers and partnerships the flexibility to choose which objectives to pursue, provided always that: (i) these objectives can count as legitimate public interest objectives within the meaning of the directive; (ii) are consistent with the social policy aims of the state; and (iii) the means used are proportionate, that is to say both appropriate to the aim and (reasonably) necessary to achieve it.
The European Court of Justice has recognised two different kinds of legitimate objective: (i) intergenerational fairness; and (ii) dignity, that is to say avoiding the need to dismiss older workers for incapacity or underperformance.
In the circumstances, the court accepted the legitimacy of the aims in question but, as Lady Hale noted, there was ‘a difference between justifying a retirement age and justifying this retirement age’. Consequently, ‘it had not been shown that the choice of 65 was an appropriate means of achieving the third aim’. In the circumstances, the case would be referred back to the ET to enable it to ‘unpick the question of the age chosen and discuss it in relation to each of the objectives’.
Equality is a major subliminal issue for local authorities in the light of the public sector equality duty in section 149(1) of the Equality Act 2010. Particularly in the context of balancing budgets against an ever-diminishing public resource base, issues of age discrimination are likely to become increasingly relevant for authorities. For those having to unravel these issues, Seldon is a useful guide and resumé of relevant jurisprudence to date.
Dr Nicholas Dobson is a senior consultant with Pannone specialising in local and public law. He is also communications officer for the Association of Council Secretaries and Solicitors
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