A Decade of Change in British Discrimination Law: Positive Steps Forward?

Abstract

The past decade has seen many developments in anti-discrimination law in Great Britain, from the implementation of the Disability Discrimination Act 1995 and the Treaty of Amsterdam 1997, to the EU framework directive for equal treatment in employment introducing three new protected grounds between 2003 and 2006 (and the subsequent extension beyond employment, in national law, of two of those grounds). All of these, and myriad implementing regulations, build on the national foundations set by the Sex Discrimination Act 1975 and the Race Relations Act 1976. With formal equality remaining the dominant model, this article looks at the scope for positive measures within British anti-discrimination law.While UK anti-discrimination law has both endogenous and European origins, both systems have adopted formal rather than substantive equality as the dominant model. Whereas formal equality demands that people in similar circumstances should be treated equally, substantive equality covers a multitude of aims including equality of opportunities and equality of ends. Accordingly, measures taken to promote the opportunities of a group, whilst attracting lip-service commendation, have, in the past, only received the backing of the law in the most limited form -as to do otherwise could infringe the principle of equal treatment. This is not the case, however, with regard to disability discrimination which is treated as a discrimination apart and as such will be dealt with later on in this article.All of the other pieces of discrimination legislation contain limited derogations from the principle of equal treatment, which thereby affords some small scope for positive discrimination, as well as containing provisions allowing for limited 'positive action'. The effect and interpretation of these provisions have changed over time and the desire to further the interests of under-represented women has led to judicial re-writing of contracts and to the European Court of Justice suggesting that positive sex discrimination may be permissible, but only where the candidates are of equal merit and provided that there is no automatic preference for women. The legislation, while generally similar, is not always in pari materia and it is therefore necessary to look at the details of the legislation and case law: how they vary according to subject matter, and how they relate to each other. The law regarding discrimination, and with it the possibilities of positive discrimination, has been subject to much change over the last decade and the recent addition of positive duties on local authorities, while limited to race, sex and disability, raises the possibility of a contractual rather than just a tortious approach to combating discrimination.There is now legislation on discrimination covering sex (including gender re-assignment and marital status), colour and nationality, racial or ethnic origin, disability, religion or belief,

The curious case of marriage/civil partnership discrimination in Britain

“… 13. Archibald v Fife Council [2004] UKHL 32, [47] (Baroness Hale). Although, as noted by Hand (2008: 603), if the coin analogy is used, then, with regard to some characteristics such as sexual orientation or race, the coin may have to be multi-faceted. …”