Mercer v Alternative Future Group Ltd, UKEAT/0196/20/JOJ, concerns trade Union activities, participation in industrial action, and ECHR Article 11.  EAT President Choudhury J states the principles from para 32. . Article 11 confers a qualified right to freedom of association and assembly. This includes the right to participate in trade Union activity. Restrictions on the exercise of the right are permitted where these are prescribed by law and are necessary in a democratic society for the protection of the rights and freedoms of others. The obligations of the State under Article 11 include both the negative one not to commit any act amounting to an infringement of the right and the positive one to secure the enjoyment of the right. The right to take industrial action and to strike is an essential element of the right and is protected by it. Any restriction, however minimal, on the right to participate in a trade Union-sanctioned protest or strike action amounts to an interference with Article 11 rights. When there is an interference with the right the question is whether such interference is justified. That involves a consideration of proportionality. When there is an infringement of the right Section 146 of TULRCA 1992 should be read as encompassing participation in industrial action.

Even in relation to child protection and safeguarding,, the European Convention of Human Rights does not give rise to any exception to the immunity of members of a diplomatic mission where their children are concerned. Diplomatic privilege limits what a local authority can do and prevents a Court from acting. So held in Barnet LBC v AG (2021) EWHC 1253 (Fam) by a Divisional Court.

The ambit of an ECHR right is wider than its “ scope”. Treatment will fall within “ scope “ if it potentially infringes an ECHR right. In an Article 14 discrimination case however the treatment will fall within the “ambit” of another Article provided that the treatment merely has a more than tenuous link with the core values protected by the other Article(s). This is a less exacting test. So reaffirmed by Bourne J in R (IJ) v SSHD (2020):EWHC 3487 ( Admin) at para 82.

The PSED applies to all aspects of a local authority’s housing function. This includes decisions to commence, pursue and enforce possession proceedings. However, it is held in Taylor v Slough BC (2020) EWHC 3520 (Ch) at paras 24-26, 29-30 and 33-43, that a breach of the PSED at an early stage of individual possession proceedings is capable of being cured by subsequent full compliance.

Severe disability is a “ status” for Article 14 purposes. They can be compared to disabled people for discrimination purposes. So held in R (SH) v Norfolk County Council (2020) EWHC 3436 ( Admin).

The nature of the PSED duty to have regard is informed by the particular function being exercised. See ZK v Redbridge LBC (2020);EWCA Civ 1597 at paras 82-84. In any case where a public authority’s functions under legislation are expressly directed at the needs of a protected group it may be/unnecessary to refer to the PSED, or to infer from an omission to do so a failure to have regard to that duty.

In R ( Bridges) v South Wales Police (2020) EWCA Civ 1058 the Court of Appeal said at para 176 that, albeit the PSED is a process duty, not an outcome duty, that does not diminish its importance. The Court observed that public law is often concerned with the process by which a decision is taken, for two reasons : (1) good processes are more likely to lead to better informed, and therefore better, decisions; (2) whatever the outcome, good processes help to make public authorities accountable to the public.
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It is now over 10 years since the enactment of the Equality Act 2010. Yet the UK Government has not elected to commence Part 1 of the Act. Part 1 relates to socio-economic inequalities. It consists of Sections 1-3 inclusive. It has been commenced in Scotland. The Welsh Government has now announced that it will come into force in Wales on 31 March 2021. The announcement is accompanied by non-statutory Guidance, “ A More Equal Wales : Preparing for the commencement of the Socio-Economic Duty “, accompanied by a Factsheet.

The duty is a requirement on relevant bodies, which include local authorities, when taking “ strategic decisions”, to “have due regard” to the need to reduce the “ inequalities of outcome” resulting from “ socio-economic disadvantages”.

Amongst the issues considered by a Divisional Court (Bean LJ and Cavanagh J) in a 55 page Judgment in Adiatu v HMT (2020) EWHC 1554 Admin was, from para 195, the scope of the PSED, including, from para 239, the question, which the Court answered in the affirmative, whether the public authority’s duty is to have regard to the equalities implications of the decision that is actually taken. The Court rules that it does not have to consider the equalities implications of other decisions that might have been taken instead : paras 242-245.

On objective and reasonable justification for difference in treatment, and in particular whether, fairly balancing the severity of the effects against the importance of the objective, the impact is disproportionate, and when the “ manifestly without reasonable foundation” criterion applies to an issue of justification, see R (Joint Council for the Welfare of Immigrants) v SSHD (2020) EWCA 542, from para 112.