Independent Workers Union of Great Britain v The Mayor of London

Indirect discrimination under the Equality Act 2010 may be justified where the respondent proves that the provision, criterion or practice is a proportionate means of achieving a legitimate aim. The court must assess the evidence objectively and balance the discriminatory impact against the benefits pursued. A measure may pursue more than one legitimate aim, including preserving accessibility for wheelchair users while reducing congestion. Adverse effects on other disabled people do not necessarily invalidate that aim. The decision-maker must consider less restrictive alternatives, but need not examine every conceivable option where no clearly equally effective alternative is shown. A stark racial disparity requires stringent scrutiny, although an appropriate, fact-sensitive margin of discretion may remain.

The appellant trade union challenged changes to London's congestion charging scheme which removed the exemption for most private hire vehicles while retaining it for wheelchair-accessible vehicles. Lewis J dismissed the judicial review challenge: [2019] EWHC 1997 (ADMIN). The appeal concerned only the claims under the Equality Act 2010. The Court of Appeal considered whether the measure pursued a legitimate aim, whether less intrusive equally effective alternatives existed, whether the proportionality assessment was lawful, and whether the comparator pool had been correctly identified. The court proceeded on the assumption that the statutory disadvantage conditions were satisfied, leaving the comparator issue unresolved.

Appeal dismissed. The Court of Appeal, in the leading judgment of Lady Justice Simler, with Lord Justice Singh and Sir Geoffrey Vos agreeing, upheld the dismissal of the challenge. The Respondent’s Notice was unnecessary to determine.

1. Under section 19(2)(d) of the Equality Act 2010, the respondent bears the burden of proving justification. The court must conduct its own objective assessment. The inquiry involves identifying a legitimate aim and then deciding whether the provision, criterion or practice is proportionate. The approach was consistent with Lockwood v Department of Work and Pensions [2013] EWCA Civ 1195 and R (UNISON) v Lord Chancellor [2017] UKSC 51.
2. Reducing congestion was a genuine and legitimate aim. Reducing the number of private hire vehicles entering the congestion zone was the means of achieving that aim, not an unlawful attempt to restrict the minicab trade. Maintaining wheelchair-accessible transport was also legitimate. Taxis were subject to distinct accessibility, acceptance and fare regulations, and section 165 of the Equality Act 2010 reinforced the importance of preserving such provision.
3. The Mayor was not required to consider every conceivable alternative. The evidence supported the conclusion that increasing the charge for other vehicles while retaining the private hire exemption would not achieve the same reduction in congestion. No clearly less restrictive and equally effective measure was shown.
4. Stringent scrutiny was required because the measure had a stark racial disparity in effect. Nevertheless, a fact-sensitive margin of discretion remained available in social and economic policy. Democratic accountability was relevant but not determinative.
5. The judge had properly assessed the forecast traffic benefits, the financial and practical effects on minority ethnic and female drivers, and the increased costs or reduced availability faced by disabled passengers. Mitigation, including passing on costs or avoiding the zone, was relevant. The forecast benefits outweighed the remaining adverse effects.

• Court of Appeal (Civil Division)—appeal dismissed: [2020] EWCA Civ 1046.
• High Court of Justice, Queen’s Bench Division, Administrative Court—Lewis J dismissed the judicial review challenge: [2019] EWHC 1997 (ADMIN).