The UK Law and Ethics in Sex Discrimination

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Abstract

This essay will involve detailed consideration of both ethical and legal considerations concerning victims of sex discrimination. This area of discrimination law is by far the longest standing in the United Kingdom.

Introduction

Not so equal?

The police would tie two of the gays together around a large stick on two desktops not very far apart, and then rotate it like a barbecue, all the time beating them. They called it ‘the grill.’^[1]

The quotation refers not to Nazi concentration camps, some bygone Christian inquest nor witch hunt. Until recent times, the occurrence explained took place frequently in modern Romania. If the sufferers would have belonged to ‘legitimate’ racial, ethnic, or religious groups, the chorus of disapproval from the international community would have been unyielding. In one way or another, the grill has churned for centuries, all over the world, and churns to a slighter degree even now.

The requirement to protect individuals against discrimination on inappropriate grounds, while permitting differential action on grounds that are morally acceptable, is one of the issues motivating the whole arrangement of British race relations law and British and European sex discrimination law. A further essential factor is the requirement, with the intention of confronting discrimination efficiently, to condemn it not simply at the intensity of specific acts of discrimination directed against individuals on inappropriate grounds, ‘direct discrimination,’ but also where discrimination is the outcome from the process of a custom or application of principles for selection which are not in themselves visibly connected to the morally dishonest criteria of sex or race, but which can be more effortlessly fulfilled by individuals of some races or one sex than other race or sex, ‘indirect discrimination.’

Regarding individuals as moral equals does not necessarily involve equal treatment, in the implication of supplying identical benefits and burdens to every one, it will do so simply when the applicants are in morally identical positions. Our voluntary conduct, involving the method in which we use our rights in the diverse circumstances in which we find ourselves, indicates that we may not be in equal moral positions when we start acting voluntarily. The standard of moral equality simply necessitates that we review and regard individuals as moral equals: we are to be considered as equally accountable for our behaviour, which are to be assessed according to customary values. It entails taking account of inequalities with reference to individual qualities, so as to give consequence to the notion of treating people as equals at a superior level of abstraction. While people who are free to be regarded as moral equals do not essentially have equal incomes, wealth, or needs, the standard of moral equality may lead to unequal treatment, with burdens being positioned disproportionately on those most capable of tolerating them so as to provide benefits to those in need.

The European Convention on Human Rights (hereinafter ECHR), Article 14

Article 14 ECHR provides that:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

This right shapes part of United Kingdom law, because Article 14 is among the Convention rights which were integrated under section 1 of the Human Rights Act 1998. The precise impact of the legislation remains uncertain; however, it does provide the prospect of legal rights being provided for various categories of victims of discrimination not incorporated in United Kingdom employment law.

In the United Kingdom, section 2 of the Act presents that Article 14 is to be interpreted taking account of applicable decisions of the European Commission and Court of Human Rights. However, the non-discrimination right under Article 14 is peculiarly drafted. The array of impermissible arguments for discrimination is very broad and is unrestricted. Then again, the right initially appears to be restricted to freedom from discrimination in the enjoyment of other Convention rights. In isolation, it appears very restricted, since the Convention rights create a floor and not a ceiling, and many disciplines of activity in which discrimination is endured are beyond the extent of the Convention rights. In 2000, the Council of Europe launched a signature treaty which would moderately remedy this. Article 1 of Protocol 12 provides:

1. 1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
   2. No one shall be discriminated against by public authority on any ground such as those mentioned in paragraph 1

Notwithstanding the United Kingdom’s disinclination to endorse Protocol 12, the provisions of Article 14 are not a dead letter. The Strasbourg institutions have afforded Article 14 an unanticipated extent of practical importance. Firstly, they have attracted awareness to the reality that Article 14 enforces a positive on top of a negative compulsion on states as to the approach in which the enjoyment of Convention rights is tenable. Secondly, there is no requirement to illustrate that a Convention right has been violated so as to state Article 14. It is sufficient to demonstrate that the subject to which discrimination has arisen falls ‘within the ambit’ of a Convention right and to that extent Article 14 has an independent scope:

While it is true that this guarantee has no independent existence in the sense that under the terms of Article 14 it relates solely to ‘rights and freedoms set forth in this Convention,’ a measure which in itself is in conformity with the requirements of the Article enshrining the right or freedom in question may however infringe this Article when read in conjunction with Article 14 for the reason that it is of discriminatory nature.^[2]

In Salguerio da Silva v Portugal, the Lisbon Court of Appeal had declined to allow custody of a child to her father, who had left her mother to go into a homosexual partnership.^[3] The father contended against the failure of the Portuguese court to implement former access remits in his defence in opposition to the mother, and the denial of allowing him custody of the child on the basis that he was living in a homosexual association, contravened both Article 8 taken alone, as it fell short of respecting his family life, and in addition Article 14 taken together with Article 8. The Court refused to make a decision on the Article 8 concern, and decided in its place that there had been an infringement of Article 14 taken together with Article 8, because the Lisbon Court of Appeal had explicitly discriminated against the father on the grounds of his homosexuality.

Nonetheless, if the Court discovers a contravention of a substantive privilege, it is liable to refuse to consider Article 14, on the basis that to do so would fulfil no convenient purpose. A case in point of this issue can be appreciated from Dudgeon v United Kingdom.^[4] Even though this is unlikely from a practical point of view, it prevents the court from an evident amount of hard work.

A number of arguments should be considered relative to the disposition of discrimination within the implication of Article 14. Not every divergence of behaviour amounts to discrimination. Each conclusive course of action in life concerns differentiating between cases, people, or other phenomenon. Legal regulations are themselves efforts to systemise the procedure of differentiation by recognizing standards by which it will be appropriate to treat cases or people in a different way. However, there are some justifications for distinguishing between cases and people which are improper. The function of Article 14 is to forbid improper differentiation in protecting the enjoyment of Convention rights.

On the other hand, there have been opportunities on which the Court has discarded applications under Article 14 simply on the basis that the claimant has offered no confirmation that the individuals who were regarded in a different way had been in equivalent circumstances.^[5] The approach the court takes is not to look for distinctiveness of attitude with diverse cases, but to enquire whether the claimant and the individuals who are regarded differently are in ‘analogous’ circumstances. In one case legislation providing for closure of pits had the consequence of closing the applicant’s pit, but there was no proof demonstrating that the claimant was in a corresponding position to that of other pit owners. An additional state of affairs is where the comparators are not in truly analogous positions. In Van der Mussele v Belgium, avocats were obliged to supply free legal support to the poor, but their standing and other characteristics were so diverse from the doctor, vet, dentists and pharmaceutical professions, that their standing was not analogous, so no Article 14 assertion could be maintained. The two dissimilar types rest a heavy burden on claimants who are claiming indirect, rather than direct discrimination. In other words, it places a burden on those encountering improperly differential treatment occurring from members of one group having trouble in meeting the needs of a seemingly general and objective regulations. Where there is evidence that the claimants are treated in a different way regardless of being in a comparatively analogous position to others, the court will contemplate Article 14.^[6]

The claimants should be capable of maintaining that the basis on which they had been treated differently from others is prima facie inappropriate, and in need of explanation. The catalogue of grounds which are inappropriate in Article 14 is illustrative, not exhaustive, and is under no circumstances closed: as social, legal, and moral standards alter, a position which was once considered as acceptable may become unacceptable. Positions which have been understood to be inappropriate for one principle may be appropriate for another. The undefined character of the list of inappropriate basis for differentiation facilitates changing circumstances to be provided for in the defence presented under Article 14 without the requirement for additional treaties or legislation, different to the slant taken in the United Kingdom and under EC law.

However, there is some indication that the Court treats particular grounds as calling for exceptionally close examination, which, as Harris O’Boyle and Warbrick acknowledge, make them comparable to the ‘suspect categories’ in anti-discrimination law in the USA.^[7] Race and sex give the impression of being such categories.^[8] Regarding children in a different way on the basis of race sex and, as Salgueiro da Silva Mounta suggests, sexual orientation, is in theory unacceptable.^[9]

The correct method to an anti-discrimination provision such as Article 14, as a result, is to determine firstly whether there is a pertinent distinction in the treatment or result. Secondly, if there is, what is the reason for that differentiation, and whether the reason is acceptable, and thirdly, whether the consequential difference is reasonable. Even though these can be settled as separate questions, they are related in practice.

The Context

The population of the United Kingdom in 2001 was determined as 58.8 million people. This marked an increase of 17% or 8.6 million people when related to 1951. The consequence of these adaptations has meant an ageing population composed with a progressively more varied family and ethnic make-up.^[10]

Sex discrimination and Sexual Orientation

Of the population of 58.8 million, 30.2 million are female. Regardless of the long subsistence of the Equal Pay Act 1970 and the Sex Discrimination Act 1975, women still endure discrimination on the basis of their gender. In the year 2001/ 2002, for instance, there were 10,092 sex discrimination allegations presented to employment tribunals.

Women are more expected to be working part-time, particularly those with dependent children. 43% of all women workers are part-time, contrasted with only 9% male workers. The main explanations for women working part-time, is their need to care for their families. In addition, women’s employment is expected to be focused in several occupations: approximately 90% nurses are female; some 64% of teaching professionals are female, as are 79% of personal and industrial relations officers. On the contrary, 6% of engineers and technologies, 21% of computer analysts and programmers and 13% of architects and town planners are female.^[11] There are efforts to get the work-family poise correct, with processes intended to defend female employees and to bestow them additional human rights, for example regulations defending part-time workers from discrimination and regulations providing the parent of a child below the age of 6 years the privilege to request more flexible hours.

As a general rule women are paid less than men. Women working full-time in Great Britain earned 81% of the average full-time earnings of men in 2002, resulting in a pay disparity of around 19%. Women who worked part-time received only 59% of the average hourly earnings of men who worked full-time, conferring a pay disparity of 41%. This last inequality has altered little ever since 1975. There is a large pay gap between married women and married men, with a pay discrepancy of 27.3%; and a great deal smaller gap between full-time single women and full-time single men. This noticeably implies that there is a superior discrimination against married women.^[12]

On the other hand, sex discrimination is not simply about discrimination against women in contrast to men. The following case is one illustration: James v Eastleigh Borough Council.^[13] In that case, Mr and Mrs Jones were together aged 61 years. The local authority had determined that inhabitants of pensionable age ought to be authorized complimentary admission to the public swimming pool. At the point in time, the pensionable age for men was 65 years and for women it was 60 years. As a consequence Mrs Jones was approved complimentary admission, but Mr Jones had to forfeit the full price. He perceptibly took exception to this and disputed the council’s guidelines by suggesting that it amounted to sex discrimination. Evidently, the council had not proposed to discriminate on the basis of sex but was merely respecting a guiding principle of affording additional help to those of pensionable age and outside. Purpose and motive were nevertheless deemed extraneous. The less sympathetic conduct would not have happened save Mr Jones’ sex, and the operation of a principle such as retirement age was in itself discriminatory on the justification of sex. As an outcome, the council was held legally responsible for direct discrimination.

In relation to discrimination on the grounds of sexual orientation, a 1993 Stonewall survey found hat 15% of lesbians and gays had experienced at least one incident of discrimination relative to their working lives, and between 4% and 8% maintained to have lost their jobs due to their sexuality. Approximately half of the lesbians and gays in that survey disguised their sexuality from their work colleagues.

The 2001 British Social Attitudes Survey found that just over half of the population believed that it was sometimes right to discriminate on the grounds of sexuality.

Race Discrimination

Figures taken from Discrimination Law show that of the population in England, 87.4% of people gave their birthplace as England, even though the ratio fluctuated a great deal in various parts of the country.^[14] In London, for example, 72.9% were born in the United Kingdom. This was a plummet on the whole as contrasted to 1991, when 89% of those in England were English born, and, conceivably, symbolizes the rise in migration in the 1990s.

When one observes ethnic origins, approximately 87% of the population of England and around 96% of the population of the United Kingdom provided their ethnic origin as white British. Though, there is a vast range concerning diverse regions of the United Kingdom. For instance roughly 2% of the English and Welsh population were of Indian origin, but in Leicester it was 25.7%.

The Race Relations Act 1976 compelled discrimination on racial grounds as unlawful. Discrimination on racial grounds signifies discrimination on the basis of colour, race, nationality, or ethnic or national origins.^[15] Then again, discrimination on racial grounds persists. The employment for the ethnic minority proportion is much fewer than for the white population. The unemployment rate was 6% for Indians, 12% for Pakistanis and 24% for Bangladeshis.

The trouble with identifying what is intended by discrimination on racial grounds was revealed in the case of Mandla v Dowell Lee.^[16] The case involved a father and son who were Sikhs. The father took his son to an interview for a position at an independent school in Birmingham. At the interview the father described that he desired to raise his son as a conformist Sikh, which included him wearing a turban. The headmaster informed them that the wearing of turbans could not be endorsed since it would be hostile to the school regime in relation to dressing in the official school uniform. The Commission for Racial Equality handled the case and protested that the school had discriminated against the boy on racial justification. A great deal of the case in the House of Lords involved deliberation of what represented an ethnic group. The court advanced a range of qualities which have been respected in many cases ever since: the group ought to possess a extensive and collective history, a cultural custom of its own, either a shared geographical origin or ancestry from a small amount of mutual associates, a collective language, a shared literature, a common religion, and be a minority or an exploited or leading group in a larger community. The court consented that Sikhs did possess these qualities and as a result there had been discrimination on racial grounds hostile to the boy. More recently a Muslim girl won the right to wear full Islamic dress at school.^[17]

Religious Discrimination

Religious discrimination was not explicitly made illegal until 2003. This class is in some sense directly correlated with racial discrimination. In Ahmad v ILEA, a Muslim school teacher who had a need for a short time off school on Friday afternoons to be present at prayers at a nearby Mosque, was declined by the school.^[18] As a result, he left his job and claimed unfair dismissal. They had instead offered him a part-time position, of working four and a half days a week. At the time of the case, the United Kingdom had not incorporated the European Convention on Human Rights into national law, however, Lord Denning stated in the case: ‘we will do our best to see that our decisions are in conformity with it.’ In this case, it nevertheless meant disallowing the assertion as its approval would have given the Muslim community ‘preferential treatment.’ The court decided that Article 9(2) of the Convention did not grant an employee the entitlement to not be present at school, to do so would be in breach of the Contract of Employment. Lord Scarman dissented, affirming that the matter started, but did not finish, with the law of contract. The judgement would signify that any Muslim, who considered their religious responsibilities earnestly, could for no reason be employed on a full-time contract as a teacher. This case reveals how it is feasible to punish someone for carrying out actions and customs associated to their religious beliefs. On the other hand, this is an old case and one is sceptical as to whether the same conclusion would be achieved today.

The Religious Affiliations 2001 census asked a voluntary question in relation to religion and over 4 million people did not answer it. The figures reveal broad geographical differences. The prominent amount of Christians were in the North East with 80.1%; in London this number fell to 58%. In the Borough of Tower Hamlets, 36% provided their religion as Muslim.

However, the British Social Attitudes Survey reporting in 2001 found that only 2% of the British public understood that employers discriminated against job candidates on the basis of religion or belief. This compares with around 20% believing this to be the case in relation to race.^[19]

Disability Discrimination

19% of individuals of working age in the United Kingdom possess an enduring disability: there are roughly 6.8 million disabled people, 3.6 million are men and 3.2 million are women. In a Labour Force Survey, the most frequent exertions between those reviewed were: musculo and skeletal problems, 36%; chest or breathing problems, 13%; heart, blood pressure and circulatory, 11%; mental illness, 8%.^[20]

Individuals with disabilities confront obstacles in many features of their life, as well as the employment field. In a report by the Department for Work and Pensions (DWP) of approaches concerning, and understandings of, disabled people the inequality in employment status between those of working age was spectacular.^[21] For example, 33% of disabled people were found to work in a job as a paid employee, compared with 66% of non-disabled people. The Disability Rights Commission Helpline took more than 5,000 calls in 2001/ 2002 from disabled people about employment, which caused hundreds of cases where disabled people were assisted to acquire their rights. The DWP study questioned disabled people about the discrimination they had faced. One of the questions asked was: when applying for a job, it was assumed I would not be able to do the job as well as a person with no disability. 25% of disabled people were found to have suffered this.

A case in point of how discriminatory practices can influence people with disabilities was revealed in British Sugar plc v Kirker.^[22] An individual chosen for redundancy asserted that he had been discriminated against because of a visual impairment, experienced since birth. The employers had conducted an appraisal assignment with the intention of selecting those individuals to be discharged. This consisted of grading employees beside a set of aspects. The plaintiff argued that the results ascribed to him were the consequence of a prejudiced belief arising out of the disability. The employee had scored 0 for promotion potential and 0 out of 10 for performance and competence. The Employment Appeal Tribunal observed that such results would suggest that the employee did not at all times attain the requisite criterion of performance and therefore needed close supervision. Nevertheless the employee had by no means been condemned for inadequate presentation and did not have any supervision. There was a requirement to deliberate the grades of other employees as the DDA 1995 did not necessitate comparisons. It was apparent that the individual had been under-graded due to his disability.

Age Discrimination

There are at the moment more individuals over the age of 60 years than there are children under 16 years. The transformation in the age population is consequently remarkable when contrasted against the 1951 survey. Throughout this fifty year phase, the percentage of the population aged under 16 years has plummeted from 24% to 20%. In unison, the percentage aged 60 years and over has escalated from 16% to 21%.^[23] The average of the population as an entirety is growing, as the average age of the economically active population. The amount of people in the European Union aged between 50 and 64 years is proposed to increase by 6.5 million throughout the next ten years.^[24]

Discrimination on the grounds of age is not illegal in the United Kingdom, provided that it does not amount to discrimination on other reasons. In Secretary of State v Rutherford (No 2), for example, a man aged 67 years was informed that he was to be discharged on the grounds of redundancy.^[25] Sections 109 and 156 of the Employment Rights Act 1996 present that any person over the age of 65 years was not permitted to make an allegation for unfair dismissal and was not allowed any redundancy expenses. As a higher ratio of males worked beyond retirement age than women, the legislation, in accordance with the employment tribunal, was indirectly discriminatory against men. The EAT upturned this judgement, however it demonstrates the association between age and sex discrimination.

The age at which someone is too young or too old to employ is something that is liable to be the consequence of a prejudiced judgement by an employer. In one review of 500 companies employing more than 500 employees, the employers were requested to contemplate their most common job and approximate at what age, on average, they would believe someone as being ‘too old’ to employ: 12% said 40 years; 25% said 50years; 43% said 55 years and; 60% said 60 years.^[26]

Discrimination on the basis of age takes place in relation to younger people in addition to older ones. The Age Discrimination in Employment policy being implemented in October 2006, will make discrimination on the basis of age in employment unlawful. There are a lot of other matters where old people could be discriminated against, for example, in the provision of health care.

A Need for the Regulations

Until of late, victims of discrimination based on sexual orientation were deprived of any defence under discrimination law. There were no rights accessible to homosexual or lesbian employees confronting discrimination under equality laws of the United Kingdom or the European Union. They were without protection because sexual orientation was not incorporated within the scope of section 1 of the Sex Discrimination Act 1975, Article 141 of the EC Treaty or Article 5 of the Equal Treatment Directive 76/ 207 EEC. The arrangement in the United Kingdom was summarised by the Court of Appeal in the case of Smith v Gardner Merchant in the subsequent way:

Discrimination on grounds of sexual orientation is not discrimination on the ground of sex within the meaning of the Sex Discrimination Act 1975. A person’s sexual orientation is not an aspect of his or her sex^[27]

It was the belief of the judiciary that homosexuality derived from someone’s sexual inclination rather than their gender and that only gender-based discrimination was suitable for association in sex discrimination cases. A comparable understanding of Community law was supplied by the European Court of Justice in Grant v South–West Trains.^[28] Nevertheless, they were remorseful for attaining such a conclusion as the subsequent quotation demonstrates: ‘while the European Parliament … has indeed deplored all forms of discrimination based on a person’s sexual orientation, it nevertheless the case that the Community has not yet adopted rules for providing for such equivalence.’^[29]

Even if homosexuals and lesbians could conquer this jurisdiction obstacle they would still be confronted with the correlated problem of finding a suitable comparator that meets the evidential condition of judiciary on these cases. The courts had held that the proper method in deciding if inequality of treatment applied was to contrast a homosexual’s treatment against a theoretical comparator, that is to say a lesbian in the same circumstances. In the case of lesbians pursuing their rights a homosexual would be a comparator. Therefore if they could persuade that the gay comparator would be subjected to discrimination in the same circumstance an action would lie.^[30] This stubborn vision of the judiciary on this subject has of late been awarded the added encouragement of the judiciary on this issue and has in recent times been given the added assistance of the Scottish Court of Session.^[31] It separated any expectation in the immediate future for lesbians and gay men attaining equal rights with heterosexual employees under United Kingdom employment law.

The structure of the law relating to discrimination as a whole was, until recently, enormously complex, consisting of a large number of interwoven strands. Before the Regulations of the 2003 Act, the main elements were: the Equal Pay Act (1970), Sex Discrimination Act 1975, The Race Relations Act 1976, The Disability Discrimination Act 1995, and Article 14 ECHR.

The New Anti-Discrimination Laws: Employment Equality (Sexual Orientation) Regulations 2003

In December 2003, the Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Equality (Religion or Belief) Regulations 2003 came into force. The laws were heralded by the BBC as ‘the biggest shake up in anti-discrimination laws for 25 years.’

Sexual Orientation is broadly defined under regulation 2 to denote orientation towards persons of the same sex, homosexuals, persons of the opposite sex, heterosexuals, and persons of the same sex and the opposite sex, bisexuals. Accordingly, ho