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John Bowers QC’s Employment Law Blog: October 2019

In R (ota Z) v LB of Hackney & Agudas Israel Housing Assoc Ltd [2019] EWCA Civ 1099, the court considered a challenge to the housing policies of a charitable provider of social housing in Hackney. Accommodation was allocated by the Housing Association only to members of the Orthodox Jewish community in the Stamford Hill area of London. The Divisional Court found that ‘there are very high levels of poverty and deprivation [amongst the Orthodox community], with associated low levels of home ownership … there is a strong correlation between the evidenced poverty and deprivation and the religion’.  It also found that the arrangements for allocating housing which placed Orthodox Jews in a primary position to enable them both to avoid the disadvantages and to meet the needs. This would be unlawful discrimination under the Equality Act 2010 unless there was an appropriate exception.

Two exceptions were relied on by the Association. S158 applies to allow positive action where persons who share as protected characteristic have needs that are different from the needs of persons who do not share it. In such cases it is lawful to take action which is a proportionate means of achieving the aim of enabling or encouraging persons who share the pc to overcome or minimise that disadvantage.

S193(2)(b) was the other exception. It required that benefits are provided to the protected group in pursuance of a charitable instrument.  The benefits must be provided for the purpose of preventing or compensating for a disadvantage linked to the protected characteristic. There was no question of proportionality here.

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