The Changing Concept of Sex Discrimination
| Author | Nicholas Bamforth |
| Published date | 01 November 1993 |
| Date | 01 November 1993 |
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb01913.x |
The
Modem Law Review
[Vol.
56
if the doctor believes that a particular treatment is necessary for his patient, it is
perfectly rational for the law to facilitate this as easily as possible and hence allow
a
‘Gillick
competent’ child to give a valid consent, and also to protect the child
against parents opposed to what is professionally considered to be in its best
medical interests. In contrast, it is surely right for the law to be reluctant to allow a
child
of whatever age to be able to veto treatment designed for his or her benefit,
particularly if a refusal would lead to the child’s death or permanent damage. In
other words, the clear and consistent policy
of
the law is to protect the child against
wrong-headed parents and against itself with the final safeguard, as
Re
W
unequivocally establishes, of giving the court the last word in cases of dispute.
The Changing Concept
of
Sex Discrimination
Nicholas
Bamforth
*
Does an employer commit an act of unlawful sex discrimination in dismissing a
woman employee on learning that she is pregnant, when the pregnancy would
prevent her from working at the time when the task for which she was specifically
recruited falls to be performed? The House of Lords has now considered this
question in
Webb
v
EM0
Air Cargo
(UK)
Ltd,’
where the applicant was taken on
to replace another employee who was going on maternity leave (although the other
employee’s eventual return did not mean that the applicant herself would have to
leave). The applicant then discovered that she was pregnant also, and, on hearing
this, the company’s managing director dismissed her. The applicant alleged that
the company had discriminated against her, either directly or indirectly, contrary
to the Sex Discrimination Act 1975.
Lord Keith, giving the only substantive judgment, held that a dismissal in these
circumstances is neither direct nor indirect discrimination under the 1975 Act, but
referred the case to the European Court of Justice2 to see whether this
interpretation is permissible in the light of the European Community Equal
Treatment Dire~tive.~ In the meantime, the decision of the House of Lords
constitutes a significant reassessment of the concept of direct discrimination in the
1975 Act, and helps explain the distinction between direct and indirect
discrimination in that Act.
The Comparative Concept
of
Direct Discrimination
What is now known as direct discrimination4 is defined in section l(l)(a) of the
1975 Act, which states that: ‘A person discriminates against a woman in any
circumstances relevant for the purposes of this Act if. .
.
on
the ground
of
her sex
he treats her less favourably than he treats or would treat a man.’ On its face, the
concept in play here seems inherently comparative: there is only direct
*Wadham College, Oxford.
1
[1992]
4
All
ER
929.
2 It is now listed as Case C-32/93.
3 ‘EEC Directive 76/207, 9 February 1976.
4
The name ‘direct discrimination’ does not appear in the Act itself, but first appears in the Home
Office’s
Sex Discrimination: A Guide
to
the Sex Discrimination Act 1975,
at
p
3. See also the Home
Office’s
Racial Discrimination:
A
Guide
to
the Race Relations
Act
1976,
at
p
4.
872
0
The Modem
Law
Review Limited
1993
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