In this age of anti-discrimination legislation, how should one deal with instances of unlawful discriminatory behaviour? By Martin Ackland
When I was a boy I was advised to beware of brown-eyed girls. Why, is a mystery. It was just one of those things. And girls with blue eyes were not entirely without risk either, according to the counsellors of my early years. By the same token, any person whose eyes were too close together was to be approached with deep suspicion. I was also told to avoid men who wore suede shoes and beards. I would run screaming into the arms of a policeman if I was offered confectionery by a stranger of any sex, colour or creed. My upbringing was replete with examples of such lore, promulgated by my elderly relatives.
By modern standards, many of these rough-and-ready rules of life are outrageously discriminatory. Perversely, girls will have eyes that are neither green nor hazel. There are several ethnic groups characterised by the proximity of their eyes. And there was certainly a time when the “suede shoes and beards” prejudice would have decimated the staff of most grammar schools and also (pre-Birt) the production department of BBCTV. But I still cling to the belief that I retain the right to reject the friendship of a stranger offering sweets.
Human beings tend naturally to discriminate, and they do it all the time in every sphere of activity, mostly without thinking too hard about it. The instinct to favour “your own kind”, and, its corollary, to disfavour those who are different, is deeply embedded in most of us. We all have preferences that, upon closer analysis, may well be prejudices. Modern society has matured to the extent of recognising that, in many cases, such instincts are both morally wrong and socially and economically undesirable. So we have made laws that make it unlawful to discriminate on the grounds of race, sex or disability.
What the law says
The relevant legislation is the Race Relations Act 1975 (RRA), the Sex Discrimination Act 1975 (SDA) and the Disability Discrimination Act 1995 (DDA). I summarise the main points of the legislation in the box opposite. All three Acts contain similar provisions relating specifically to property. Broadly speaking, what they say is that it is unlawful to discriminate in connection with the disposal or management of property, or when considering whether to give consent to the assignment of a tenancy of property.
There is also a more general prohibition on discrimination in relation to the provision of goods and services. The law applies with equal force to owners of property, surveyors, solicitors and others involved in the property industry, whether as principals or agents. Exceptions are few, but include cases where the landlord wholly occupies the property concerned. This means, for example, that when considering whether to have a particular lodger in your house, you should not be penalised if you choose to exclude someone on the grounds of race, sex or disability.
The law says that your or your client’s behaviour should not be influenced by the race, sex or disability of people with whom you are dealing. However, prejudice does exist and the law’s disapproval is not always effective in stopping it.
Dealing with discrimination
So how should a solicitor or surveyor respond when advising a client in connection with, for example, a refusal to grant a licence to assign where it is possible that the refusal to give consent is unlawful discrimination? It is a difficult and dangerous area. It is likely that the client will feel strongly about the issue, and your advice may be extremely unwelcome.
The law helps in this instance by being very clear. If the client’s actions amount to unlawful discrimination, a solicitor or surveyor who knowingly assists the doing of the act will be as guilty as the client. He may therefore be personally exposed to the wrath both of the law of the land and any professional body for breaching rules of professional conduct. He may also expose his partners to a similar risk.
The danger here is actual knowledge of discrimination. If you do not know, but merely suspect, that the client is motivated by illegal prejudice, one possibility would be to ask for written confirmation from the client that, in withholding consent to an assignment or refusing to deal with a particular individual, he is not committing an offence under any of the relevant discrimination Acts. Such a statement, if it were reasonable to rely upon it, would act as a defence to the charge of aiding discrimination.
However, this is unlikely, in practice, to be an attractive solution. First, because the outcome is uncertain, and, second, because whatever information or suspicion you may have that prompts you to ask for the statement will be used against you when considering if it were, in fact, reasonable to place reliance upon the statement.
In practice, therefore, the solicitor or surveyor has only two choices if he suspects that discrimination is at work. Either he takes a deep breath, broaches the issue with his client and tries to persuade him to adopt an alternative course of action, or he declines to act. The possibility that he will cease to act unless his instructions are changed may well be a decisive factor.
And what are your choices if you are on the receiving end of discrimination? If the case involves an application for a licence to assign and the seller and the buyer are prepared to be robust, you will have the option of completing the assignment without consent, upon the basis that it has been withheld not only unreasonably but also illegally. This is certainly not a solution for the faint-hearted, and you will need to be very sure of your facts.
There is a safer, but more expensive option. It would be possible to seek a declaration from a court or tribunal that the landlord is acting illegally. If appropriate, you can, at the same time, also ask the tribunal to award compensation and to make an order requiring the guilty party to put matters right.
Do laws work?
Can rules and regulations ever eradicate ingrained behaviour? It is all very well to enact a scheme of penalties and sanctions for bad behaviour. Behaviour may change as a result, but do laws such as these change the attitudes that lead to the objectionable behaviour? If altered behaviour becomes habitual, it might be possible to claim that attitudes have changed. But one continues to encounter deep-rooted and violent prejudice that seems utterly untouched by liberal, modern morality.
Those who lived in other, older times, less pampered by regulation, would, I suspect, be surprised and a little baffled by these laws and the thinking behind them. One can imagine William Wallace during his final moments thinking a timely non-discrimination notice to be a good thing. But I cannot believe that Boadicea would have chosen to pursue a class action on behalf of the Iceni under the RRA, rather than the infinitely more satisfying remedy of painting herself blue and chopping off the legs of her enemies with sharpened hubcaps.
Martin Ackland is a partner at Stringer Saul
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Key points |
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” Discrimination per se is not unlawful ” However, it is unlawful to discriminate on the grounds of race, sex and disability ” The law applies to owners of property, surveyors, solicitors and other principals or agents involved in the property industry |
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Summary of legislation 1 Discrimination in itself is not unlawful. Only those instances of discrimination covered by the Acts are unlawful. 2 Sex discrimination occurs where a woman is treated less favourably than a man, or a man is treated less favourably than a woman. 3 Racial discrimination occurs where a person is treated less favourably than others are, or would be, treated in similar circumstances solely on grounds of race. Racial grounds cover colour, race, nationality or ethnic or national origins. Note that discrimination on religious grounds is not in itself unlawful (although it is in Northern Ireland). However, it may often amount indirectly to racial discrimination. 4 Disability discrimination occurs where, without reasonable justification, a person is treated less favourably than others because of his disability. A disability is defined as a physical or mental impairment that has a substantial and long-term effect upon a person’s ability to carry out normal day-to-day activities. 5 Circumstances covered by all three Acts include employment, education (not the DDA), the provision of goods and services, and certain aspects of property. 6 The remedies available under the Acts commonly involve an application to an employment tribunal for a declaration as to the complainant’s rights, compensation and, perhaps, an order requiring the wrongdoer to put matters right. |
