Private landlords post-Brexit: avoiding race discrimination
Tom Gillie and Declan O'Dempsey - both barristers at Cloisters - explain how to avoid two types of race discrimination under the Equality Act 2010 which are relevant to landlords’ right to rent duties: indirect discrimination and harassment.
Indirect discrimination is where a landlord, without justification, applies a practice, criteria or policy which has an identifiably disadvantaging effect on tenants of a particular racial, ethnic or national group. For instance:
- a policy requiring that a prospective tenant has been resident in the UK for a certain number of years (which migrants are less likely to satisfy)
- a practice of only checking the immigration status of adults who have not rented before (which new migrants are less likely to satisfy)
- a practice or policy of only verifying the right to rent on the production of a certain type of document (e.g. a passport) which migrants are less likely to possess or which ignores other documents with which migrants are likely to prove immigration status
- imposing selection criteria to ensure that it is more likely that a prospective tenant will have the right to rent but which in reality has a harsher effect of people of certain races, ethnicities or nationalities compared to others.
A rule which operates and has the effect of disadvantaging an individual in this way will need to be justified by reference to a lawful aim and as an appropriate and necessary method of pursuing that aim. Otherwise it is an unlawful act of indirect discrimination.
What's the solution?
- Ensure policies do not include an arbitrary previous residency period as a condition of providing accommodation
- Accept any of the documents listed in the statutory guidance as proof of a right to rent as appropriate
- Keep a clear ‘audit trail’ of your decision process on the right to rent
When formulating a policy regarding the right to rent, the following process can be useful:
- Identify the objective behind what you are trying to do by applying the rule you are proposing: ensure that tenants have a right to rent
- Is your policy appropriate to help you achieve that objective?
- Will your policy help you to achieve your objective or will it make little difference? If it will make little difference, do not introduce the policy.
- If it will help to achieve the objective, will your decision have a negative impact on people or groups of particular races, nationalities or ethnicities?
- If yes, are there any other ways of achieving your objective which would be less discriminatory?
Harassment is unwanted conduct by a landlord, which relates to the tenant’s race and which has the purpose or effect of either violating the tenant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Examples of this would include:
- repeatedly asking a tenant or prospective tenant about their ethnic, nationality or immigration status
- requiring tenants to provide repeatedly proof of immigration status because they are of a particular ethnic background or nationality
What's the solution?
Checks should be carried out:
- before the prospective tenant enters into tenancy agreement
- before the prospective tenant takes up physical occupation of the property if the tenant is trying to secure accommodation from overseas in advance of their arrival, or if it is not possible to undertake checks before the tenancy agreement is signed for some other good reason
And, if a continuous statutory excuse is established, then no other checks on that tenant should be made.
If merely a time limited statutory excuse can be established, the landlord should only conduct one follow-up check:
- before twelve months have elapsed from the date of the last check
- before the period of the person’s leave to be in the UK expires
- before the expiry of any validity period of the document which evidences the tenant’s right to be in the UK
Of course, if a check is genuinely carried out incorrectly requiring a replacement check to be carried out, landlords should do so, even if that means checking the tenant’s residency status more than once.
The right to rent code of practice at para 5.2 lists the documents which should be used to reach a decision on whether the person has a right to rent.
So what does this all mean?
Provided proper caution is used in relation to making checks, there is no reason why tenants from diverse backgrounds should be made to feel singled out by reason of their race. Until the UK actually withdraws from the European Union, EU, EEA and EFTA citizens continue to enjoy the benefits of free movement and hence cannot be treated disadvantageously, less favourably or unfavourably as a result of their nationality. The government has indicated that the position of EU nationals will, in some form, be likely to be protected. The future is filled with complexity.
Cloisters has significant expertise in advising and representing organisations and individuals in all aspects of equality and discrimination. The contents of this blog should be taken as guidance only and should not be relied upon as legal advice..