Recognition of Disadvantage
Opening the List of Perscribed Grounds of Discrimination
Would human rights in the UK be better protected if there was a move away from the practice of having a closed list of specifically named grounds of discrimination?
As the legislation currently stands in the United Kingdom, a legal claim of discrimination can only be successful if the type of discrimination suffered by the claimant is included in the legislative list of protected grounds. Unfortunately, the fact that only single grounds (such as sex discrimination or race discrimination) are listed demonstrates a legislative failure to recognise the true nature of discrimination. All too often, people suffer discrimination due to a combination of different factors (such as sex and race discrimination) but this situation is not currently given sufficient legal recognition. It justice is to be truly served, people must be protected from the exact kind of discrimination they have suffered rather than just from the most convenient legal fit.
One possible solution that has been offered for this problem is the idea of moving away from a closed list of specifically named grounds of discrimination so that claims of multiple discrimination could be recognised.
A Solution to the Problem?
In her article on multiple discrimination for the Justice Journal in 2006, Gay Moon suggests that one possible method for addressing the difficulties of claims of multiple discrimination would be to open up the list of protected grounds of discrimination. The current anti-discrimination legislation in the UK features a closed list of specifically named grounds. Moon contrasts this with Article 14 of the European Convention on Human Rights which takes a more fluid approach to protected grounds and states that discrimination is prohibited:
“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”.
If UK legislation was altered to copy this open ended approach, it would result in discrimination claims being possible for any combination of possible grounds of discrimination and so would indeed facilitate claims of multiple discrimination.
A Complex Situation
However, to allow this to happen would require an extreme change to be made to the structure of the anti-discrimination legislation in the UK and so would not be a step to be taken lightly. Further, to open up the legislation so that the range of grounds of discrimination is unlimited would, in effect, mean that it is impossible to have a principle that direct discrimination is unjustifiable.
Moon theorises that this would result in all forms of discrimination, whether direct or indirect, having to be open to justification. It such a thing did happen then a much greater emphasis than currently occurs would be placed on the supposed justification for discriminatory acts. More power to decide on the occurrence of discrimination would therefore be placed in the hands of the judiciary and claimants would be faced with an increased lack of certainly as to whether their claims would succeed.
Combating Discrimination
The desire to permit claims of multiple discrimination in the UK is ultimately a desire to provide adequate protection for those who are currently unable to get sufficient recognition for the discrimination they suffer. Consequently, no reform to the anti-discrimination legislation should be permitted that would actually have an adverse effect on claimants.
An increase in uncertainty of outcome and the possibility for capricious decisions by judges would certainly have an adverse effect on claimants and so, any opening up in the protected grounds of discrimination, could not take place without further measures being taken to ensure that such measures would have a positive rather than negative effect on claimants.
References:
Moon, G. "Multiple Discrimination - Problems Compounded or Solutions Found?" (2006) 3 Justice Journal 2
