Companies as Victim

02 Oct 2015

I haven't taken to the ether for a while because Parliament and the courts have been on holiday and I’ve have been riding my bike in the Usk Valley and the Brecon Beacons.  I knew it was a steep ascent when my front wheel lost traction due to the extreme gradient - going down the other side was a bruising reminder of the force of gravity!

Back in the relative safety of the law one tends not to think of companies claiming discrimination but the proposition is simplicity itself; if a company can be a discriminator it can be a victim, and now we have judicial authority. The facts of the case are pretty impenetrable (well, they are to my mind which is still half way down Cribyn) and concern the relationships between a limited liability partnership, a retiring member of the partnership and a personal service company established by the retiree.  Something went wrong and the company alleged direct age discrimination against the partnership.

The partnership challenged the company’s standing to make the claim. An Employment Judge rejected the challenge, the partnership appealed and the President of the EAT dismissed the appeal.  Towards the end of some dense argument he made a lucid determination which bears repeating:

“In my view, the fact is that the thrust of anti-discrimination legislation is always likely to be focused upon an individual and his or her reaction to the insult that discriminatory treatment gives.  However, the question is whether or not others – whether individual or corporate – may have the right to complain that they too have suffered detriment by reason of the way individuals have been treated.  It seems to me that there are any number of examples that may be given of treatment which comes within the scope of this question that is plainly contrary to public policy.  Examples might be 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.  These examples may not necessarily be brought within Chapter 5, but all are examples of the way in which one person, natural or legal, may suffer because of the protected characteristic of another when public policy tends to the view that there is no proper basis for any such treatment.”

So corporate bodies may sue for discrimination – let the claims come forward…