Should some direct sex discrimination claims under section 13 of the Equality Act 2010 be re-classified as 'sex related discrimination' claims?

Abstract

Sex discrimination has been and continues to be, an endemic social ill in the UK. To tackle it, a multifactorial approach is required involving pressure group action, collective bargaining and litigation, to name but a few approaches. This thesis focuses on the litigation option, with a focus on how the system of sex discrimination law can be strengthened.

Section 13 of the Equality Act 2010 (2010 Act or Act) defines direct sex discrimination as less favourable treatment of an individual because of sex.

There is no defence to a direct sex discrimination claim. Indirect sex discrimination occurs, under section 19 of the 2010 Act, where a neutral provision, criterion or practice has a disproportionately adverse impact on a group of people of the same sex. The claimant must be of the same sex as the group which is disadvantaged and share the disadvantage with the group.

Indirect discrimination can be justified by the employer using a proportionality defence. Direct and indirect sex discrimination claims are mutually exclusive: a claimant can plead either in the alternative, but the same discriminatory conduct cannot be both direct and indirect discrimination at the same time.

The thesis takes the position that this strictly dichotomous approach is problematic for sex discrimination litigants and judges who must adjudicate such cases. In particular, I argue, with reference to case-law, that there is a subcategory of sex discrimination claims which cannot be accurately described as either direct or indirect sex discrimination. Instead, these cases fall within a conceptual “gap” between the two. At present, there is no legal claim to fill this “gap.” The central question posed by the thesis is: how should the legislature close this “gap?”

Having identified the problem, the thesis goes on to exemplify it by critically evaluating the House of Lords decision in James v Eastleigh Borough Council (“James”). The result of this analysis is two-fold:

(1) James, like the other cases analysed in the thesis, is neither an example of direct nor indirect discrimination. Instead, the potentially adverse treatment is “related” to sex.

(2) The law on direct sex discrimination has been emptied of its moral and legal content by the James case in light of the fact that the Law Lords had to try and squeeze the facts of the case within the strictly dichotomous headings of direct or indirect discrimination.

Given this impasse, the thesis engages in a critical review of the existing literature, which tries to solve these problems, but these pre-existing theories are found wanting. As a result, I move on to construct a “sex related discrimination” model which can be applied to James, and cases like it. The application of the model to the James case demonstrates the utility of this intermediate head of claim. Indeed, it is argued that the law should include the “sex related discrimination” claim to make the system of UK sex discrimination laws more cohesive and robust. This will provide claimants with a broader range of potential sex discrimination claims. It will also re-align the respective claims with their philosophical underpinnings and promote judicial transparency.