Housing estate – Management company — Caretaker’s accommodation – Council policy regarding type of accommodation available for residential staff employed by management organisations – Claimant organisation alleging policy discriminatory and unlawful – Whether policy discriminating against employees – Application dismissed
The claimant tenants’ and residents’ management organisation managed an estate owned by the defendant council. In March 2003, the claimant employed C as the caretaker of the estate. A one-bedroom flat was provided as part of his salary package. By an agreement that took effect from November 2003, the defendants granted a licence to the claimant for the use of a flat to house an employee for the better performance of his or her duties on the estate.
In January 2007, the defendants adopted a policy whereby only studios would be made available to housing management organisations to offer on licence to their residential staff. The claimant attempted to persuade the defendants to allow it to licence a three-bedroom flat to C. A secure tenant who occupied a three-bedroom flat was willing to move into the one-bedroom flat occupied under licence by C, thus allowing the defendants to licence the vacant three-bedroom flat to the claimant.
The defendants rejected that proposal, but the director of housing indicated in writing that she would exercise her discretion to grant a licence of a two-bedroom property to the claimant as part of a three-way move that would release the three-bedroom flat. She acknowledged that no two-bedroom flats were available nor was one likely to be so in the foreseeable future.
The claimant applied for judicial review of the defendants’ policy. It contended that the policy involved discrimination in breach of Parts 2 and 3 of the Sex Discrimination Act 1975 because of its effect on residential staff with families and, in particular, section 6, which dealt with discrimination against employees and section 30, which concerned discrimination in the disposal or management of premises.
Held: The application was dismissed.
Having regard to the legal relationships between the parties and the terms of the defendants’ policy, there was no basis for arguing that the defendants’ policy constituted unlawful discrimination.
The legal arrangement between the defendants and the claimant was that of principal and agent, which was confined to the management of the estate. That the claimant was the defendants’ agent in that regard did not mean that any of the claimant’s employees had a direct relationship with the defendants. As a matter of law, the defendants did not employ the claimant’s staff, nor did they house them. Staff were employed directly by the claimant, and its staff had no employment or landlord and tenant relationship with the defendants arising out of their status as the claimant’s employee.
Having regard to those legal relationships, there was no basis for arguing that the defendants had unlawfully discriminated under the 1975 Act. The defendants’ policy applied to housing management organisations, not to individuals, whether in civil partnerships, married or otherwise. As for section 6, the defendants’ policy did not impinge on their relationship with their own employees, but was directed at their relationship with housing management organisations such as the claimant. The policy did not seek to determine how the claimant would treat any existing or future employees. Similarly, the defendants’ policy did not concern the manner or terms on which they offered accommodation to men or women within section 30 of the 1975 Act, but addressed what type of accommodation they were prepared to offer to housing management organisations for their prospective employees.
Accordingly, given the way in which the legal arrangements between the parties were structured, the defendants’ policy did not discriminate in the manner suggested by the claimant and so it was therefore not unlawful. Moreover, there was no evidence that it failed to give due regard to the issue of gender equality pursuant to section 76A of the 1975 Act.
John McCafferty (instructed by Alan Edwards & Co) appeared for the claimant; Gary Pryce (instructed by the legal department of Westminster City Council) appeared for the defendants.
Eileen O’Grady, barrister
