Equality and the Law

The neutrality and objectivity associated with the application of formal equality, has secured its dominance within the legal regime as identifiable in the principles of stare decisis, precedent and the rule of law.30 In the UK historically the primary concern has been the consistent application of the law. However, under such an approach there is no guarantee of a positive outcome.31 A claim to equal treatment can be satisfied by both levelling down (depriving the compared parties of the benefit concerned), or by levelling up (conferring the benefit on both parties involved).32 As it is satisfied by both improving or worsening the position of individuals, formal equality “proceeds from an abstracted and objectified analysis of equality that ignores the lived experience of inequality”.33 _{This raises questions as to whether the pursuit of such equality is of any} value to those it is supposed to protect. The outcome of the application of neutral principles is not considered relevant in the application of formal equality.

30 _{It ought to be noted that these principles do not form an exhaustive list of the ways in which formal} equality has been embraced by the legal system. Central to this thesis as discussed at [4.2],[4.3.2],[6.8] is the Rosset approach.

31 _{Echoing the moral neutrality of the rule of law, particularly as exemplified by Raz’s knife analogy:} Raz J., The Authority of Law: Essays on Law and Morality (Oxford: Oxford University Press, 2009), 225- 6.

32 _{Barnard C., & Hepple B., ‘Substantive Equality’ (2000) 59(3) Cambridge Law Journal 562, 563.} 33 _{Brake D. L., ‘When Equality Leaves Everyone Worse Off: The Problem of Levelling Down in Equality} Law’ (2004) 46(2) William & Mary Law Review 513, 516. Although the prospect of levelling down remains a possibility, the political implications of such an approach means that it is infrequently invoked. However, there have been examples: see Balgobin v. London Borough of Tower Hamlets [1987] I.R.L.R. 402, EAT and Stewart v. Cleveland Guest (Engineering) Ltd. [1994] I.R.L.R. 440, EAT by way of levelling down in the context of sexual harassment.

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The direct discrimination legislation of the 1970s, and within the Equality Act 2010 provide specific examples of equal treatment legislation in the UK.34 One of the central issues concerning direct discrimination, as an element of formal equality in practice is the requirement of a comparator, which has historically proved problematic for women due to occupational segregation and legislative loopholes exploited by employers.35 This demonstrates the way in which formally neutral rules can, when played out in a gendered society, replicate inequality. That is not to say that formal equality has not benefitted those considered ‘other’, for example it was on this basis that women gained the right to vote and the right to equal pay. However, the latter serves as an example of the way in which formal rights do not go far enough in addressing the substantive causes of inequality.36

Despite the natural appeal, and historical affiliation between the law and formal equality, there are increasingly instances in which a substantive approach has been adopted due to the inability for the formal approach to adequately deal with difference. This has particularly been invoked in relation to group characteristics, and can be seen within the context of indirect discrimination.37 _{Indirect discrimination can be invoked when} supposedly neutral provisions have an adverse impact upon a particular group of individuals, thus acknowledging that neutrality and ‘sameness’ do not always result in equality. 38 _{Maternity provisions provide an additional example of substantive}

34 _{Equal Pay Act 1970, hereafter EPA; SDA 1975, hereafter SDA; Equality Act 2010, hereafter EqA are} examined in Chapters 5-7 in detail.

35 _{EqA 2010 s1(4) EPA s23, s71 does allow for the use of a hypothetical comparator in limited} circumstances, this is also examined in detail in the Chapters 5-7.

36 _{As discussed in Chapter 7, particularly [7.2] despite numerous legislative acts aimed at alleviating the} gender pay gap, it persists.

37 _{The issues in relation to equality and group characteristics is discussed in detail below: see [3.3.2].} 38 _{Equality Act 2010, s19, Although the inability to raise claims as a group within this context has proved} problematic in that it only addresses the effects on an individual rather than dismantling the structural inequality which gave rise to the issue and has the potential to impact others within such a ‘group’.

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legislation in action. However, given the centrality of pregnancy and motherhood to the difference debate, this is discussed in detail below.39

Overall, within a legal context equality based in neutrality remains desirable in principle. Yet, the implications of such an approach are, in practice , inherently biased and in many cases, replicate existing inequalities. The masculinity of neutrality, particularly in the context of the public sphere where male performance is the norm has meant that the application of neutral rules often acts to the detriment of women.40 _{This has arisen due} to the construction of social institutions as inherently masculine and embodying patriarchal values, from which the law has not escaped. The central flaw in the formal approach remains tied to its reluctance to acknowledge difference, relying on the construction of the neutral individual, and the preclusion of groups that this individualism entails. The notion of the neutral individual and the problems which arise from a disregard of groups is examined below.41