Facts
Mr Abrams was a member of EAD, a limited liability partnership (LLP). For tax reasons, as he approached retirement, he set up a limited company of which he was the sole director and principal shareholder. He withdrew from membership of the LLP and the limited company took his place. It took the profit share that Mr Abrams would have received as a member, in return for which it undertook to supply the services of an appropriate fee-earner to the LLP. Although it was expected that this would be Mr Abrams himself, there was no requirement that it should be him. He was not an employee or a worker of the company and neither did he have any contractual relationship with the LLP.
When Mr Abrams reached the LLP retirement age, the LLP objected to his company remaining a member of the LLP, and to his continuing to supply his services to the LLP.
Mr Abrams claimed direct age discrimination, naming himself as first claimant and the company as second claimant. An employment judge held, as a preliminary issue, that the limited company was entitled to bring a claim that it had suffered discrimination under the Equality Act 2010. The LLP appealed.
EAT Decision
The EAT (Langstaff P, sitting alone) dismissed the appeal and held that the claim by the company could proceed.
The EAT rejected the LLP's argument that, since only individuals can have the protected characteristics listed in the Equality Act, only individuals can be protected from discrimination.
The EAT held that the Equality Act 2010 does not protect individuals on the basis of their own protected characteristics, but identifies discrimination as treatment caused by a protected characteristic or related to it. This was recognised as long ago as Showboat Entertainment Centre Ltd v Owens [1984] ICR 65. On the clear wording of section 13(1) of the Equality Act 2010, the protected characteristic does not have to be that of the person suffering the detriment. In the EAT's view, whether the person suffering the detriment is capable or incapable of having a protected characteristic is irrelevant.
The EAT also referred to the Interpretation Act 1978 which states that a person includes "a body of persons corporate or unincorporate". Therefore "person" in the Equality Act 2010 could include a limited company unless the contrary intention appeared in the statute. The EAT did not think there was such contrary intention.
Since a discriminator under the Equality Act 2010 must be a "person", and it has long been recognised that the discriminator can be a corporation, there did not seem to be any reason why the "person" on the receiving end of the discrimination must necessarily be an individual.
Although section 27 of the Equality Act 2010 specifically states that victimisation can only occur where the victim is an individual, this does not mean that the same restriction should be seen as applying to other parts of the statute. Rather, in the EAT's view, the specific restriction in section 27 is only necessary because the Equality Act 2010 is capable of protecting both natural and non-natural persons.
The EAT reached its conclusions without the need to have regard to EU law, although it did note in particular that, although the LLP had argued that EU law did not require corporate bodies to be protected, such protection would, in the EAT's view, be "entirely consistent" with the EU treaties and directives.
The judgment is available here.
EAD Solicitors LLP & 7 Ors v Abrams [2015] UKEAT 0054_15_0506 (05 June 2015)