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Katherine Apps in Supreme Court: judgment on direct and indirect discrimination

This morning judgment has been handed down in R (Coll) v Secretary of State for Justice [2017] UKSC 40 CLICK HERE. This is the first time the Supreme Court has considered the lawfulness of sex specific provision of services under statutory discrimination law since the House of Lords judgments in Birmingham City Council v EOC [1989] AC 1155 and James v Eastleigh Borough Council [1990] 2 AC 751. This is also the first time that the Supreme Court has considered the lawfulness of such a service where the demand for the service differs between men and women.

The Applicant successfully challenged the provision and distribution of women’s Approved Premises in England and Wales (formerly bail and probation hostels: there are 94 men’s hostels and 6 women’s hostels: women constituting approximately 5% of the prison population). The Supreme Court found that the provision directly, and not indirectly, discriminated on the grounds of sex. It could, in principle, be objectively justified under Schedule 3 paragraph 26 as a separate sex service, but had not yet been shown to have been so.

The judgment of Lady Hale (for the Court) considers where the distinction between direct and indirect sex discrimination lies at [26]-[33] and considers objective justification at [39]-[42].

Although this case was brought as a judicial review challenge to a government policy, the analysis of the Equality Act 2010 applies across employment discrimination law.

Katherine Apps (led by Martin Chamberlain QC and Oliver Sanders QC is instructed by the Government Legal Department who are acting for the Secretary of State for Justice.

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