Aiding contreventions

[heisenberg]

Re: Aiding contreventions

Not really; just highlighting how a case often turns on the facts, & 'hypothetical' can be misleading. :tinysmile_twink_t2:

Fair point. :thumb:

[Openlaw15]

Re: Aiding contreventions

Dear all,

I am wrestling with a conundrum.

Section 112 of the Equality Act 2010 states as follows:

112 Aiding contraventions

(1) A person (A) must not knowingly help another (B) to do anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or (2) or 111 (a basic contravention).

Using a mere example to demonstrate the difficulty I have:

A nurse refused to care for a patient for discriminatory reasons (let's say the patient has a horrific disease which amounts to a 'disability'). The patient reports a concern to the Nursing and Midwifery Council who knowingly helps the nurse discriminate against the patient (for whatever reason).

Could the Nursing and Midwifery Council successfully defend a section 112 claim against it on the basis that the alleged discriminatory act of the nurse took place before it had knowledge of it therefore it could not retrospectively aid that act?

Could it be argued that the nurse has a continuing duty of care therefore the discriminatory act is continues up until the time the Nursing and Midwifery Council were informed of it therefore the time that the alleged act occurred is somewhat irrelevant?

In Anyanwu v South Bank Student Union and South Bank University [2001] UKHL 14 [2001] IRLR 305 HL (a Relations Act 1976 case), the Lords suggest that the phrase 'knowingly aids' in section 33 did not imply a desire, intent or aim. All it meant is that the 'aider' had "given some kind of assistance to the other person. The amount or value of that help or assistance is of no importance. Nor is the time at which it is given. It may or may not have been necessary. All that is needed is an act of some kind, done knowingly, which helps the other person to do the unlawful act.

Any input appreciated.

The key words are knowingly aid - therefore person B must knowingly aid them to be liable. On the facts you present, Person B (the Nursing/ Midwifery Council) cannot knowingly aid the nurse to commit an unlawful discrimination. If they are not aware that the nurse has discriminated against the patient that is a complete defence. A duty of care breach is different claim (in tort) to a claim of disability discrimination. In general, disability discrimination continues up to the last episode discrimination, so 3 months to make a claim from the last disab. discrim.

[heisenberg]

Re: Aiding contreventions

The key words are knowingly aid - therefore person B must knowingly aid them to be liable. On the facts you present, Person B (the Nursing/ Midwifery Council) cannot knowingly aid the nurse to commit an unlawful discrimination. If they are not aware that the nurse has discriminated against the patient that is a complete defence. A duty of care breach is different claim (in tort) to a claim of disability discrimination. In general, disability discrimination continues up to the last episode discrimination, so 3 months to make a claim from the last disab. discrim.

I think the timing is irrelevant. If the patient complains to Person B (the Nursing/ Midwifery Council) and alleges an unlawful act of discrimination on the part of Person A (the nurse) and Person B (the Nursing/ Midwifery Council) is wholly and unreasonably dismissive it therefore aids that act.

Look at the case of Miles v Gilbank [2006] EWCA Civ 543 whereby an employee complained to her employers in respect to the unlawful acts of others. The employer was dismissive. The Tribunal held the employer was therefore vicariously liable for aiding those acts (even though the acts took place before they were complained of and the employer had no knowledge of them prior to that).

[wales01man]

Re: Aiding contreventions

Is this another CC claim?

[heisenberg]

Re: Aiding contreventions

Is this another CC claim?

This relates to the one I already have issued.

[wales01man]

Re: Aiding contreventions

How is that claim progressing

[heisenberg]

Re: Aiding contreventions

How is that claim progressing

Could be going a lot better - they seem to be getting away with murder.

[Noah]

Re: Aiding contreventions

I would agree that if someone commits an unlawful act and their governing body/superior then dismisses a complaint they could very well be guilty of aiding the offence but it could get complicated - forgive me if I am using incorrect jargon.

To put it simplistically
If I punch someone in front of a police officer because that person was black/blue/green/ a one legged Lithuanian Lesbian and the Police officer did nothing then they would surely have condoned the act but are they guilty of a breach of duty or are they guilty of aiding and abetting. Clearly if I went and punched another blah blah , it could be argued that they had aided and abetted because they turned a blind eye to offence 1.


I am however getting extremely confused with what exactly heisenberg is trying to demonstrate

[Openlaw15]

Re: Aiding contreventions

I think the timing is irrelevant. If the patient complains to Person B (the Nursing/ Midwifery Council) and alleges an unlawful act of discrimination on the part of Person A (the nurse) and Person B (the Nursing/ Midwifery Council) is wholly and unreasonably dismissive it therefore aids that act.

Look at the case of Miles v Gilbank [2006] EWCA Civ 543 whereby an employee complained to her employers in respect to the unlawful acts of others. The employer was dismissive. The Tribunal held the employer was therefore vicariously liable for aiding those acts (even though the acts took place before they were complained of and the employer had no knowledge of them prior to that).

On your facts the alleged discrimination is against the patient. These cases your citing relates to discrim affecting employees.. ie tribunals. If you're dealing with a court, tribunal decisions are not binding authorities.

[heisenberg]

Re: Aiding contreventions

On your facts the alleged discrimination is against the patient. These cases your citing relates to discrim affecting employees.. ie tribunals. If you're dealing with a court, tribunal decisions are not binding authorities.

In the example the claim would be brought by the patient against the regulator (the Nursing/ Midwifery Council) for turning a blind eye and in so doing aiding the unlawful act.

Is a Court of Appeal Judgment not binding on the County Court?

- - - Updated - - -

I would agree that if someone commits an unlawful act and their governing body/superior then dismisses a complaint they could very well be guilty of aiding the offence but it could get complicated - forgive me if I am using incorrect jargon.

To put it simplistically
If I punch someone in front of a police officer because that person was black/blue/green/ a one legged Lithuanian Lesbian and the Police officer did nothing then they would surely have condoned the act but are they guilty of a breach of duty or are they guilty of aiding and abetting. Clearly if I went and punched another blah blah , it could be argued that they had aided and abetted because they turned a blind eye to offence 1.

I am however getting extremely confused with what exactly heisenberg is trying to demonstrate

Hahaha...

You seem to be agreeing with the argument then that the patient could potentially sue the regulator for aiding the unlawful act regardless of the timeline of events (the part I am unsure on)?

[heisenberg]

Re: Aiding contreventions

I have another example:

A disabled person who is reliant on housing benefit due to his disability is looking for a property to rent. He approaches an estate agency with a view to seeing a property on the market. The respective landlord adopts a policy and/or criterion that he does not accept tenants who are in receipt of housing benefit. The agency informs the prospective disabled tenant of this whilst the landlord fails to make reasonable adjustments to that policy.

The disabled person requests the address details of the prospective landlord from the agency so as to issue a claim for indirect discrimination/discrimination arising from disability/failure to make reasonable adjustment claims. The agency refuses to provide these details to protect its client (the landlord).

Is the agency aiding a contravention (section 112) in these circumstances?

[Noah]

Re: Aiding contreventions

I would say no

If the LL does not take people on HB there is no discrimination against a person with disability. The agent is bound by the DPA not to pass on details

[heisenberg]

Re: Aiding contreventions

If the LL does not take people on HB there is no discrimination against a person with disability.

We would have to agree to disagree on that.

[Noah]

Re: Aiding contreventions

I am open to be persuaded

Why would it be discrimination if the LL refused anyone on HB. This would mean that anyone with a disability could sue any LL that refused to give them a tenancy which would appear to be absurd

Would you have any case law on that?

[heisenberg]

Re: Aiding contreventions

I am open to be persuaded

Why would it be discrimination if the LL refused anyone on HB. This would mean that anyone with a disability could sue any LL that refused to give them a tenancy which would appear to be absurd

Would you have any case law on that?

I am glad you are open to be persuaded. :tinysmile_twink_t2:

Every case turns on its own specific facts.

Have a look at section 15 (discrimination arising from a disability). If the disabled person is on housing benefit because of his/her disability then the landlord is effectively treating that person unfavourably because of his/her disability. Causation is slippery word - see Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065.

Furthermore, it is arguable that the disabled person is at a substantial disadvantage in comparison to those who are not disabled. The test is not whether others are also at a disadvantage but whether the PCP bites harder on the disabled person. See Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265.