By
Andrew Peters
Landmark legal ruling opens way for firms to hit back using equality law
December 3, 2015 12:19
1 min read
By
Andrew Peters
A recent legal decision could open the floodgates for UK companies associated with Israel to hit back when faced with boycotts.
Under the UK's Equality Act, it is discriminatory for a person to treat another person less favourably due to a "protected characteristic".
Protected characteristics include age, race (which includes nationality), sex, disability and religion. It had always been assumed that only an individual could sue for discrimination. This assumption has now been challenged in the case of Gerry Abrams Ltd v EAD Solicitors.
Mr Abrams was a partner at EAD solicitors. Approaching the age of 62, he set up his own limited company, Gerry Abrams Limited (GAL), and with EAD's agreement, that company became a partner in EAD solicitors, supplying Mr Abrams' services. When Mr Abrams reached 62, EAD discontinued GAL's fees, and it was effectively "retired". GAL sued EAD solicitors for age discrimination on the basis that it had been treated less favourably due to Mr Abrams's age.
Looking at the Equality Act's definition of discrimination, the Employment Appeal Tribunal held that a "person" could include a corporate entity and therefore that there is nothing stopping a corporation from suing another corporation (or individual) for discrimination based on the protected characteristic of one or more people associated with it.
So, if I choose not to do business with your company, your company can sue me, if it can show that I did not buy from it because I didn't like what I saw of your nationality, religion, etc.
Boycott Divestment and Sanctions (BDS) supporters routinely call for companies in the UK to stop carrying Israeli products and to divest from Israeli companies (as well as non-Israeli companies that do business with Israel). Sainsbury's, Tesco, Waitrose and Marks and Spencer have all been urged by BDS to stop selling Israeli produce.
On the face of it, if any of these supermarket chains acceded to this pressure, the supplier of that produce could sue for its loss arising from that decision.
There is one obvious condition. The Gerry Abrams case made it clear that the protected characteristic must relate to a living person associated with the corporate body. A corporate body is incapable of possessing a protected characteristic.
Therefore the boycotted company must demonstrate that the supermarket has ceased to use it because of a protected characteristic of, for example, its owners, its board or its workforce, rather than some non-discriminatory reason such as cost or quality.
This should not prove an insurmountable challenge, given that many of the targeted suppliers would either be owned or run by Israelis or feature a predominantly Israeli workforce.
Andrew Peters is a solicitor in the labour and employment department of Squire Patton Boggs
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