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Re: provision of services, sanctions and discrimination

Summary

This Central London County Court decision addresses the extent of discrimination law exemptions available to businesses in the UK where they refuse to accept new business because of regulatory sanctions, in circumstances which could potentially give rise to race discrimination claims.

Background

On its website XTX Markets Technologies Limited (“XTX”) describes itself as: “…a leading algorithmic trading firm that uses state-of-the-art machine learning technology to produce price forecasts for over 50,000 financial instruments across equities, fixed income, currencies, commodities and crypto”.

Mazars LLP (“Mazars”, now Forvis Mazars) is an international group providing: “…audit, assurance, tax, advisory and consulting services globally…”

In early 2022 XTX was looking at outsourcing its global payroll function and asked Mazars to provide a proposal. The ultimate beneficial owner of XTX, Dr Alexander Gerko, held dual British and Russian citizenship.

In February 2022 Russia invaded Ukraine. As a consequence of this the UK, EU and USA introduced sanctions which – broadly speaking - prevented organisations from doing business with Russian individuals and entities who/which had assets in Russia or were designated persons under the sanctions regime.

Mazars declined the XTX instruction.  XTX took legal action against Mazars under the Equality Act 2010 (“EqA”) on the basis of race discrimination. Mazars argued that it had no option but to decline the request in order to comply with the international sanctions.

Judgment

The County Court found against XTX, dismissing the claim on procedural grounds having concluded that Mazars UK was not the relevant decision-maker. As a consequence the EqA did not apply.  
However the Court went on to consider whether Mazars’ sanctions-related defences would have succeeded in other circumstances.

It found that a “blanket ban” preventing onboarding Russian nationals, with nothing more, was not reasonably necessary in order to comply with the sanctions. Mazars had failed to explain its concerns properly to XTX and/or to request additional information. There was a total absence of evidence as to the belief of those within the relevant parts of Mazars who made the decision to refuse services.

Comment

Jersey’s Discrimination (Jersey) Law 2013 includes an exemption from liability for an act of discrimination where the act “is done necessarily for the purpose of complying with…any enactment”. The XTX judgment is of relevance given the central importance of financial services business to our economy and the - sometimes onerous - compliance obligations which apply to them. The case demonstrates the challenges facing financial services businesses and the complex balancing-exercises tribunals may be required to undertake.

Viberts provide advice and representation in all aspects of employment and discrimination law, both to individuals and to organisations.