Employment Appeal Tribunal decision opens up a whole new area of claims

In the case of Mr G Abrams vs EAD solicitors, the company owned by Mr Abrams made a claim against EAD that they had discriminated against them as a company by refusing to pass work on to them because Mr Abrams was older than EAD solicitor’s normal retirement age. Whilst the merits of the actual claim have not yet been decided, one issue has been ruled on that could have wide ranging implications for the way we do business in the UK.

The specific issue is whether company A can make a claim against company B for discrimination if the company B acted in a way that was detrimental to Company A because of a characteristic covered by the Equalities Act 2010. The Appeal Tribunal ruled that it could. What this means can best be described by way of an example.

Let’s say an evangelical Christian organisation wants to let a contract to repair the roof of their church. They put out an invitation to a number of local companies who bid for the work. One of the companies that puts in a bid is run by someone who is in a same sex relationship and well known in the community. The church holds strong views on this subject and decides not to award the contract to this company because of these views. The roofing company could then make a claim against the church that they discriminated against them because of their association with someone who is gay and this is unlawful under the Equalities Act.

There are two other issues that add a bit of spice to such a claim:

  1. There is no limit to the amount that could be awarded for such a claim so if the contract was for a few hundred thousand pounds that could be the award.
  2. When a claim like this is made, it is for the respondent to show that there decision was not based on a protected characteristic (in this case the sexuality of the company owner), not for the claimant to show that it was. i.e. the respondent has to prove a negative.

Whilst the possible ramifications of such a decision are essentially unknown, there is one that is almost inevitable. Local and central government procurement processes will become even more mind numbingly bureaucratic as they try to write a tendering process that stops them being subject to a claim under equalities legislation.

Whilst my gut reaction to this is that discriminating against a company because it has an enlightened approach to appointing staff and directors is just wrong. I can’t help feeling that this decision may have consequences that are equally distasteful, and actually create an environment that has the opposite effect to that intended by the legislation. I do not have the wisdom to know the right way out of this problem, but I would be happy to hear from anyone who has any thoughts.

Leave a Comment