Defining the limits of discrimination law in the United Kingdom
| DOI | 10.1177/1358229114558544 |
| Date | 01 March 2015 |
| Author | Colm O’Cinneide,Kimberly Liu |
| Published date | 01 March 2015 |
| Subject Matter | Articles |
Article
Defining the limits
of discrimination law
in the United
Kingdom: Principle
and pragmatism in
tension
Colm O’Cinneide and Kimberly Liu
Abstract
Even after the codification of anti-discrimination legislation in the Equality Act 2010,
UK anti-discrimination law is caught in an embedded tension between principle and
pragmatism. It is designed to give effect to the principles of equal treatment, non-
discrimination and respect for human dignity. However, its scope and substance has
often been limited by reference to pragmatic concerns, such as the need to minimize
regulatory burdens and to maximize business efficiency, which sit uncomfortably
with these principled underpinnings. This tension between principle and pragmatism
tends to play out in particular with regard to debates about what exceptions should
be carved out of the general prohibition on discrimination set out in the UK legis-
lation. UK legislatures and courts have often been quick to adopt a ‘pragmatic orien-
tation’ in this context. However, this approach can be difficult to reconcile with the
more purposive, rights-protective, principled orientation of the European Union law
and, to a lesser extent, the requirements of the European Convention on Human
Rights.
Keywords
Discrimination, EU law, equality, principle, pragmatism
Faculty of Laws, University College London (UCL), UK
Corresponding author:
Colm O’Cinneide, Reader in Law, Faculty of Laws, University College London (UCL), UK.
Email: c.o’cinneide@ucl.ac.uk
International Journalof
Discrimination and theLaw
2015, Vol. 15(1-2) 80–100
ªThe Author(s) 2014
Reprints and permission:
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DOI: 10.1177/1358229114558544
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Introduction
UK anti-discrimination legislation provides comprehensive protection against discrimi-
nation across a range of nine personal characteristics, namely, age, disability, gender
reassignment, marital status and civil partnership, pregnancy and maternity, race (which
is a composite category, covering ethnic and national origin as well as nationality in cer-
tain contexts), religion or belief, sex and sexual orientation. It goes beyond the require-
ments of the European Union (EU) anti-discrimination law by prohibiting discrimination
based on these characteristics across the spheres of employment and occupation, the pro-
vision of goods and services, access to education and housing and the performance of
public functions. It also requires reasonable accommodation to be made for persons with
disabilities, permits positive action that is in conformity with EU law as interpreted by
the Court of Justice of the EU (CJEU)
1
and imposes an innovative positive equality duty
on public authorities to promote equality of opportunity across all the equality grounds
listed above.
However, the scope and substance of UK anti-discrimination law is subject to certain
significant constraints, which restrict its reach and limit its capacity to combat discrimi-
natory behaviour by public and private bodies. These constraints take two principal
forms, as discussed in relation to different contexts throughout this volume, namely,
‘exceptions’, whereby particular situations are excluded from the scope of non-
discrimination law, and ‘justifications’, whereby potentially discriminatory behaviour
that comes within the scope of anti-discrimination law is deemed to be lawful.
This article focuses primarily on exceptions to UK anti-discrimination law. It argues
that the development of British law in this context has been characterized by a tension
between two distinct views as to how anti-discrimination law should be framed by leg-
islatures and interpreted by courts.
The first such view can be described as involving a ‘principled’ approach, whereby
presumptive priority is accorded to the moral and legal principle that individuals should
be free from unfair forms of unequal treatment over competing considerations such as
business efficiency. Translating this approach into legal reality involves maximizing the
scope of anti-discrimination law to ensure that it offers comprehensive protection against
the varieties of discriminatory behaviour that exist and minimizing exceptions to its
reach and the range of circumstances where potentially discriminatory behaviour can
be justified.
The second such view can be described as the ‘pragmatic’ approach. This accords
greater weight to the competing considerations that are often weighed in the balance
against the principle of equal treatment, such as the need to minimize regulatory burdens,
maximize business efficiency and limit the disruption and legal uncertainty that can be
generated by the application of anti-discrimination law. This pragmatic approach is gen-
erally more accommodating of exceptions to the scope of anti-discrimination law. It also
tends to be more accepting of determinations by courts and legislatures that potentially
discriminatory treatment is justified and lawful.
The tension between these two approaches has been played out in the context of
parliamentary debates about how to frame anti-discrimination legislation. It has also
surfaced in judicial decisions about how such legislation should be interpreted and
O’Cinneide and Liu 81
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