Seminar 3 The Right to Equality and non-discrimination

Readings:
1. Equality Act 2010 (Chapter 1, Section 19, and Section 149) & Article 14 of the ECHR

Key Points:
 Equality Act 2010:
o Section 19: Indirect Discrimination:
 Prohibits practices or policies that appear neutral but
disproportionately disadvantage individuals with a protected
characteristic unless objectively justified.
o Section 149: Public Sector Equality Duty (PSED):
 Requires public authorities to eliminate discrimination, advance
equality of opportunity, and foster good relations between individuals
with and without protected characteristics.
 Shifts the focus from reactive enforcement to proactive measures,
encouraging systemic change.
 Article 14 of the European Convention on Human Rights (ECHR):
o Prohibits discrimination in the enjoyment of ECHR rights based on sex, race,
language, religion, or any other status.
o Unlike the Equality Act, it does not provide an independent right to equality
but ensures non-discrimination in conjunction with other substantive rights.

Significance:
These provisions establish both legal prohibitions of discrimination and proactive duties to
promote equality, with Article 14 adding a human rights dimension to anti-discrimination
efforts.

2. Sandra Fredman, Discrimination Law (2022), Chapter 5

Key Points:
 Explores the evolution and principles of indirect discrimination and positive
duties in anti-discrimination law.
 Argues for substantive equality:
o Recognizes systemic inequalities and power imbalances.
o Advocates for equality frameworks that address structural barriers, redistribute
resources, and respect group-specific identities.
 Highlights the importance of intersectionality, stressing that laws must account for
overlapping disadvantages experienced by individuals due to multiple protected
characteristics.
 Examines the Public Sector Equality Duty (PSED) as a proactive tool to address
systemic discrimination.

Significance:
Fredman provides a comprehensive framework for understanding discrimination law as a
dynamic tool for achieving substantive equality rather than merely enforcing formal equality.

3. Sandra Fredman, "Emerging from the Shadows: Substantive Equality and Article 14
of the ECHR" (2016)
Key Points:
 Critiques the European Court of Human Rights (ECtHR) for historically treating
Article 14 as a secondary provision.
 Advocates for interpreting Article 14 in light of substantive equality, emphasizing:
1. Redistribution: Addressing material disparities.
2. Recognition: Combating stigma and ensuring dignity.
3. Transformation: Dismantling systemic barriers.
4. Participation: Enabling marginalized groups to have a voice in decision-
making.
 Examines landmark cases to argue that the ECtHR is increasingly recognizing
substantive equality principles in its jurisprudence, though inconsistently.

Significance:
Fredman highlights the potential of Article 14 to evolve into a robust tool for addressing
structural and systemic inequalities, provided courts adopt a more transformative approach.

4. Kim S.Y., "Les Vulnerables: Evaluating the Vulnerability Criterion in Article 14

Cases by the European Court of Human Rights" (2021)

Key Points:
 Evaluates the ECtHR’s use of vulnerability as a criterion in Article 14 cases.
 Critiques the concept of "vulnerability" for:
1. Lacking a clear definition, leading to inconsistent application.
2. Risking stigmatization of groups labeled as "vulnerable."
3. Failing to address intersectional or systemic causes of inequality.
 Argues for a more nuanced approach:
o The court should focus on context-specific disadvantage rather than
generalizing vulnerability.
o Advocates for recognizing structural and systemic dimensions of
discrimination in vulnerability analyses.

Significance:
Kim’s analysis provides a critical lens for improving the ECtHR’s application of Article 14,
emphasizing the need for a substantive equality framework that avoids essentializing or
stigmatizing marginalized groups.

Integration and Overarching Themes

1. Proactive and Substantive Equality:
o Sections 19 and 149 of the Equality Act 2010, Fredman’s works, and Article
14 jurisprudence all underscore the importance of shifting from formal
equality to substantive equality, addressing systemic inequities proactively.
2. The Role of Article 14:
o Fredman (2016) and Kim (2021) critique and explore the evolving role of
Article 14 in the ECtHR. While Fredman advocates for its potential to advance
substantive equality, Kim warns against the pitfalls of the vulnerability
criterion in achieving this goal.
3. Structural and Intersectional Analysis:
o Fredman (2022) and Kim stress the importance of tackling intersectional and
structural inequalities, which indirect discrimination laws and proactive duties
like the PSED are well-suited to address.
 4. Critiques of Current Frameworks:
o Both Fredman and Kim call for courts to adopt more nuanced, transformative
approaches to equality, moving beyond procedural or superficial
interpretations.

Protected Characteristics under the Equality act 2010:

- Age (s 5)
- Disability (s 6)
- Gender reassignment (s 7)
- Relationship status i.e. marriage and civil partnerships (s 8)
- Race (s 9)
- Religion and belief (s 10)
- Sex (s 11)
- Sexual orientation (s 12)

Socio-Economic Status is not a protected characteristic BUT

Public sector duty regarding socio-economic inequalities

(1) An authority to which this section applies must, when making decisions of a strategic
nature about how to exercise its functions, have due regard to the desirability of exercising
them in a way that is
designed to reduce the
inequalities of outcome
which result from socio-
economic disadvantage.

Prohibited conduct

Section 13 of the Equality Act 2010

Direct discrimination
(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A
treats B less favourably than A treats or would treat others.

If the protected characteristic is:

(2) … age, A does not discriminate against B if A can show A's treatment of B to be a
proportionate means of achieving a legitimate aim.
(3) … disability, and B is not a disabled person, A does not discriminate against B only
because A treats or would treat disabled persons more favourably than A treats B.
(5)… race, less favourable treatment includes segregating B from others.
(6)…sex— (a) less favourable treatment of a woman includes less favourable treatment of
her because she is breast-feeding.
(b)in a case where B is a man, no account is to be taken of special treatment afforded to a
woman in connection with pregnancy, childbirth or maternity
Section 15 of the Equality Act 2010

Discrimination arising from disability

(1) A person (A) discriminates against a disabled person (B) if—

(a) A treats B unfavourably because of something arising in consequence of B's
disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a
legitimate aim.
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably
have been expected to know, that B had the disability.

Section 14 of the Equality Act 2010

Combined discrimination: dual characteristics

(1) A person (A) discriminates against another (B) if, because of a combination of two
relevant protected characteristics, A treats B less favourably than A treats or would treat a
person who does not share either of those characteristics.
(3) For the purposes of establishing a contravention of this Act by virtue of subsection (1), B
need not show that A's treatment of B is direct discrimination because of each of the
characteristics in the combination (taken separately).
(4) But B cannot establish a contravention of this Act by virtue of subsection (1) if, in
reliance on another provision of this Act or any other enactment, A shows that A's treatment
of B is not direct discrimination because of either or both of the characteristics in the
combination.

Section 19 of the Equality Act 2010

Indirect discrimination

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or
practice which is discriminatory in relation to a relevant protected characteristic of B's.
(2)… a provision, criterion or practice is discriminatory in relation to a relevant protected
characteristic of B's if—
(a) A applies, or would apply, it to persons with whom B does not share the
characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular
disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.

Section 19A of the Equality Act 2010

Indirect discrimination: same disadvantage

(1) A person (A) discriminates against another (B) if—
(a) A applies to B a provision, criterion or practice,
(b) A also applies, or would apply, the provision, criterion or practice to—
(i) persons who share a relevant protected characteristic, and
(ii) persons who do not share that relevant protected characteristic,
(c) B does not share that relevant protected characteristic,
(d) the provision, criterion or practice puts, or would put, persons with the relevant
protected characteristic at a particular disadvantage when compared with persons who
do not share the relevant protected characteristic,
(e) the provision, criterion or practice puts, or would put, B at substantively the same
disadvantage as persons who do share the relevant protected characteristic, and
(f) A cannot show that the provision, criterion or practice is a proportionate means of
achieving a legitimate aim.

Section 149 of the Equality Act 2010

Public Sector Equality Duty

(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is
prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected
characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic
and persons who do not share it.
(2) A person who is not a public authority but who exercises public functions must, in the
exercise of those functions, have due regard to the matters mentioned in subsection (1).
(3) Having due regard to the need to advance equality of opportunity between persons who
share a relevant protected characteristic and persons who do not share it involves having due
regard, in particular, to the need to—
(a) remove or minimise disadvantages suffered by persons who share a relevant
protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected
characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in
public life or in any other activity in which participation by such persons is
disproportionately low.
(5) Having due regard to the need to foster good relations between persons who share a
relevant protected characteristic and persons who do not share it involves having due regard,
in particular, to the need to—
(a) tackle prejudice, and (b) promote understanding.
(6) Compliance with the duties in this section may involve treating some persons more
favourably than others; but that is not to be taken as permitting conduct that would otherwise
be prohibited by or under this Act.

1. Lack of Enforcement of Section 14 (Dual Discrimination)

Gap:
 Section 14, intended to address dual discrimination (where discrimination occurs due
to the intersection of two protected characteristics), has never been brought into force.
This means the law does not adequately address intersectionality.
Why It Matters:
 Discrimination often involves overlapping disadvantages (e.g., race and gender).
Without legal recognition, the unique experiences of individuals facing intersectional
discrimination may go unaddressed, as existing frameworks treat each characteristic
in isolation.
2. Limited Recognition of Structural Discrimination
Gap:
 The Act primarily focuses on individual cases of discrimination, often framed as
direct or indirect, without explicitly addressing structural or systemic inequalities.
Why It Matters:
 Structural discrimination, as discussed by Fredman (2022), Fredman (2016), and Kim
(2021), involves societal systems or institutional practices that perpetuate inequality.
Proactive duties like the PSED (Section 149) are valuable but lack teeth, as
enforcement is weak and relies on self-regulation.

3. Inadequate Protection for Socio-Economic Status

Gap:
 Socio-economic status is not a protected characteristic under the Act, despite its
significant role in perpetuating inequality.
Why It Matters:
 Socio-economic inequality intersects with protected characteristics like race and
gender, amplifying disadvantage. The Act’s omission limits its ability to address
economic marginalization comprehensively.

4. The Public Sector Equality Duty (PSED): Limited Effectiveness

Gap:
 While the PSED is a proactive measure, it lacks robust enforcement mechanisms.
Public authorities often fail to implement or comply fully with their equality duties,
and accountability is limited.
Why It Matters:
 Without stronger enforcement or clearer guidelines, the PSED risks being symbolic
rather than transformative. This undermines its potential to address systemic
inequalities proactively.

5. Private Sector Limitations

Gap:
 The Act applies less stringently to private organizations, especially small businesses,
compared to public bodies. Many equality duties are limited or non-mandatory for
private entities.
Why It Matters:
 A significant proportion of discrimination occurs in the private sector (e.g.,
employment). Limiting the scope of obligations on private entities reduces the Act’s
effectiveness in fostering workplace equality.

6. Lack of Clear Guidance on Positive Action

Gap:
 The Act allows for positive action to address disadvantages faced by protected
groups, but guidance on how to implement this is vague, leading to underutilization.
Why It Matters:
  Positive action can be a powerful tool for substantive equality, as Fredman (2016)
highlights. However, uncertainty about legal boundaries discourages organizations
from taking such steps.

7. Insufficient Focus on Disability-Specific Needs

Gap:
 While Section 15 addresses discrimination arising from disability, it does not fully
capture the nuances of accessibility or systemic barriers faced by disabled individuals.
Why It Matters:
 The focus remains on individual accommodations rather than systemic change to
create universally accessible environments, limiting progress toward full equality for
disabled people.

8. Narrow Application of Article 14 ECHR Principles

Gap:
 The Act does not fully integrate the substantive equality principles associated with
Article 14 of the European Convention on Human Rights (ECHR), as highlighted by
Fredman (2016).
Why It Matters:
 A more robust incorporation of substantive equality could strengthen the Act’s ability
to address dignity, recognition, and participatory justice for marginalized groups.

Equality and Human Rights

Human Rights are those rights we have by virtue of being Human

They are associated with ideas of personhood i.e. autonomy, liberty and welfare and concept
of human dignity

But what is the relationship between equality and human rights?

Do these rights always apply equally?
Are violations of these rights ever justified?
Is there a right to equality?

Rights under the ECHR

The European Convention on Human Rights (‘ECHR’) recognises the inalienability of

human rights and limits when they can be interfered with
There are several rights under the ECHR relevant to CJS interaction:
Article 2 – Right to Life
Article 3 – Right to be free from Inhumane and Degrading Treatment
Article 5 – Right to Liberty and Security
Article 6 – Right to a Fair Trial
Article 8 – Right to Private and Family Life

Article 14 of the ECHR - 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.

Article 1 of Protocol 12 –
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 any public authority on any ground such as those
mentioned in paragraph 1.

A glance at Article 14 reveals three key characteristics. First, it is structured as a parasitic or

dependent right. It guarantees only that ‘the enjoyment of the rights in this Convention shall
be secured without discrimination’ on the mentioned grounds. … Secondly, the list of
enumerated grounds is a product of its time. Some seem less pressing now than they did then,
whereas current key issues, such as disability, sexual orientation and age, are missing. On the
other hand, the list is non-exhaustive. It is prefaced by ‘such as’, suggesting that they are only
illustrative, and ends with ‘other status.’ The third characteristic relates to the concept of

discrimination, which is mentioned but not defined. Fredman, 2016: p 275

From the notion of suspect categories, the Court developed a new criterion: vulnerability of
the group to which the applicant belongs. The Court identified negative social attitudes,
dependency on the state, historical prejudice, and social exclusion as markers of vulnerable
groups. In contrast to the suspect categories approach, the vulnerability criterion …By giving
special consideration to vulnerable groups, with a focus on the possible effects of a particular
rule, the Court intended to encompass substantive equality against structural injustice. Kim,
2021: p 621

What Issues Are There with the ECHR’s Current Approach to Equality?

1. Limited Scope of Enumerated Grounds (Article 14):

o As Fredman (2016) points out, Article 14 provides a parasitic or dependent
right, guaranteeing equality only in relation to other rights in the European
Convention on Human Rights. This creates a limited and reactive approach to
equality, as it does not stand alone but depends on the enjoyment of other
rights.
o Additionally, the list of enumerated grounds (such as race, sex, religion, etc.)
is outdated and does not fully reflect modern concerns. For instance, key
issues like disability, sexual orientation, and age were not explicitly
included, despite their growing importance in contemporary society. Though
the list is non-exhaustive and includes "other status," the ambiguity of this
provision makes it difficult to address emerging issues comprehensively.
2. Vague Definition of Discrimination:
o Article 14 mentions discrimination but does not provide a clear definition of
what constitutes discrimination. This lack of clarity can lead to inconsistent
interpretations by the European Court of Human Rights (ECtHR),
complicating the application of the law and undermining its effectiveness in
promoting equality.
3. Inconsistent Application of Vulnerability Criterion:
o The vulnerability criterion, as outlined by Kim (2021), has been introduced by
the ECtHR to consider the vulnerability of the group to which the applicant
belongs (e.g., negative social attitudes, historical prejudice, and dependency).
While this criterion is a step toward addressing structural inequality, it is
 still inconsistentin its application. The Court has yet to fully operationalize
the concept of vulnerability, and the lack of a comprehensive, standardized
approach means that some vulnerable groups may not be adequately protected.
4. Over-reliance on Judicial Interpretation:
o The Court’s approach often relies heavily on judicial interpretation of what
constitutes a vulnerable group or what needs to be done to address inequality.
This leaves considerable room for subjective decision-making, which can lead
to inconsistent outcomes and undermine the development of clear, enforceable
standards.
What Positives Are There with the ECHR’s Current Approach to Equality?

1. Recognition of Substantive Equality:

o The introduction of the vulnerability criterion by the ECtHR, as Kim (2021)
explains, reflects a significant step towards recognizing substantive equality.
By focusing on vulnerable groups and the possible effects of a rule, the Court
moves beyond formal equality and strives to address deeper structural
inequalities that disproportionately affect marginalized groups. This shift
towards substantive equality is a positive development as it considers not just
the outcome but the context and impact of laws and policies on different
groups.
2. Flexibility Through Non-Exhaustive List of Grounds:
o Article 14’s non-exhaustive list of grounds offers a degree of flexibility, as it
allows the Court to recognize additional forms of discrimination beyond the
initial enumerated categories. This flexibility allows the Court to adapt to
societal changes and respond to emerging issues related to equality, such as
those concerning sexual orientation, disability, or gender identity.
3. Broadening of Protection for Vulnerable Groups:
o The focus on vulnerability is a positive development, as it directs special
attention to groups that face structural discrimination or social exclusion,
such as people with disabilities, racial minorities, and economically
disadvantaged individuals. It ensures that the laws are not only equal in form
but also equitable in their impact.
4. Encouraging a More Transformative Approach to Equality:
o By embracing substantive equality and vulnerability, the ECHR has the
potential to promote transformative change. Rather than treating all groups
identically, the Court's focus on recognizing and addressing specific
vulnerabilities can foster more equitable outcomes in practice, particularly for
those historically marginalized.

Do You Think the ECHR Goes Far Enough in Meaningfully Ensuring Equality?

While the ECHR’s approach has made important strides, it does not go far enough in
meaningfully ensuring equalityfor several reasons:
1. Inconsistent Application and Limited Scope:
o The ECHR’s focus on vulnerable groups and substantive equality is
promising, but its inconsistent application and reliance on judicial
interpretation hinder its full potential. A more systematic and clear
framework for assessing vulnerability and discrimination is needed, alongside
stronger guidance on how to protect vulnerable groups in a consistent and
predictable way.
2. Reactive, Rather Than Proactive:
o The ECHR’s approach remains primarily reactive—it only addresses issues of
equality when they intersect with violations of other rights. There is no
independent or proactive right to equality in Article 14, meaning that equality
issues often get sidelined until they are linked to another breach. This reactive
model limits the ability to address inequality before it manifests in violations
of other human rights.
3. Failure to Address Intersectionality:
o Despite its flexibility, the ECHR has not sufficiently integrated
an intersectional approach into its equality jurisprudence. Discrimination
often affects people in overlapping and complex ways due to multiple
marginalized identities (e.g., gender, race, disability, sexual orientation). The
current framework is not robust enough to adequately address these
intersections, which means that some individuals may still fall through the
cracks of protection.
4. Lack of Clear Guidance on Positive Action:
o While the vulnerability criterion addresses some of the structural issues, there
is still a lack of clear guidanceon when and how positive action should be
taken. The Court’s approach remains limited in its ability to mandate changes
in social, political, and economic structures that perpetuate inequality.