The Equality Act 2010 states that any act which is discriminatory under several grounds which is referred to as protected characteristics; these characteristics are age, disability, gender reassignment, marriage, civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. This therefore means that under this act if any of these provisions are breached then necessary measurement will be needed. The law is put in place for our rights to be protected, this is seen through one concept which is formal equality; this upholds the law and ensures everyone is treated alike despite their differences in age, sex, race, colour. However, this concept can be flawed as it does not consider their differences and material differences. In contrast, substantive equality considers their material differences between the individuals and groups. The main aim of this approach is to achieve de-facto equality whereas formal equality focuses more on de-jure equality. This essay will outline the key concept or concepts of equality under the anti-discrimination law and what it is aiming to achieve.
According to Fredman, she explains “how equal treatment can in effect lead to inequality, like unequal treatment might be necessary to achieve equality.” From this quote, it can be inferred that equality can be formulated in different ways, depending on which conception is chosen. “equality of treatment is predicated on the principle that justice adheres consistency”1. This shows that de jure equality must remain consistent for equality to be achieved; from this it is clear to see that this is a form of formal equality which requires individuals to be treated the same. This view is further supported by Aristotle’s doctrine of ‘things that are treated alike should be treated alike.’ The definition of direct discrimination is seen in the Equality Act 2010, it highlights the approach of formal equality; it defines direct discrimination as treating someone less favourably than someone else due to their protected characteristics. This clearly shows that a comparison must be made. This view is further supported by Fredman as stated, ‘consistency is the treatment of two individuals who appear alike but in fact differ in terms of access to power, opportunities, or material benefits,’ this then all results in unequal outcomes. This clearly shows that treating everybody the same does not take in to account any material differences between those who are compared. This approach will compare the discrimination of men and women and claim that the discrimination between men and women are equally the same. However, it ignores a clear difference between both as women are more discriminated against than men and this has been conveyed all throughout history. This approach requires equal treatment for all but that doesn’t mean everyone will be treated equally well, it could mean even mean treating people equally bad; an example which highlights this approach is the Smith v Advel Systems LTD, case C.408/92 1994 ECR 1-4433. This case pointed out the differences in the pension ages for men being 65 and women 60, the Court of Justice of the European Union held, that raising the pension age for women to 65 satisfied the principle of equal treatment as it meant that men and women were treated the same way. The focus point of this approach is treating everyone the same, however that does not leave room to recognise that people are different. The concept promotes alikeness which excludes any differences, thus there is no value of difference and diversity. It is clear to see that Fredman distinguishes between the concept of formal equality, it is apparent that equal treatment can in effect lead to inequality, this therefore means that individuals must be treated the same under the law. Formal equality promotes sameness which is the main reason for inequality as it ignores the clear differences of individuals.
In contrast, substantive equality is a different concept compared to formal equality which mainly focused on the law and ensuring that everyone is treated equally regardless of their protected characteristics. Substantive equality takes into consideration individual material differences. The main aim for this concept is to achieve de-facto equality; the substantive view of justice ensures that the focus is on equality of results this takes in to account the disadvantaged groups. For example, women are more likely to have the caring domesticated role in the family, the substantive approach will take the woman’s role into account. Therefore, substantive equality aims to compensate for the social inequalities as well as certain disadvantages of belonging to a certain group. This form of equality is more sensitive to group aspects of discrimination and the reasons why individuals or groups get discriminated against due to being members of a group for example being from ethnic minorities, religious groups, women and the disabled. When trying to achieve equality for members that are at a disadvantage; substantive equality approach will try correcting the disadvantage. As Fredman stated ‘unequal treatment might be necessary to achieve equality’ this means that ‘unequal treatment might be necessary to equalise the opportunities for all individuals,’ therefore unequal treatment is necessary when trying to achieve equality. There are two forms of substantive equality, one being Equality of opportunity which means bringing everyone to the same starting point without worrying about end. The convention highlights the importance of equality of opportunity which concentrates on equalising the starting point for all people; in terms of women’s access to equal terms with men as the convention goes beyond state action to secure the human rights of women and men which in the end ensures equality of results. This approach recognises that ‘women and men may have to be treated differently for them to benefit equally this is in relation to Fredman idea that unequal treatment might be necessary to achieve equality. This approach considers that treating everyone the same based on their merits is not the right approach to take as some people will be left at a disadvantage as they do not have the same equal opportunities as others, therefore competing on the same level may be difficult because they are not at the same starting point due to a persons’ disadvantages. Therefore, the anti-discrimination law aims to compensate for the missed opportunities. Fredman highlighted how ‘unequal treatment might be necessary to achieve equality’ this under the provision for positive action section 158 and 159 of the Equality Act 2010, an employer could provide special language classes for those who do not have English as their first language; this is as being unequal because not everyone is going to benefit from the English classes for example those who already have English as their first language. However, in this case no one is left at a disadvantage as now the employees can gain the language skills to compete in promotions. Therefore, when it comes to the anti-discrimination the law aims to equalise the starting point so that everyone has the same opportunities to compete but on equal terms. In addition, a flaw of this approach is that treating people unequally is being unjust and unfair; also after the starting point is equalised this then means that the competition will be based on their merits. This approach excludes the end results therefore not leading to a more egalitarian society. Another form of substantive equality is equality of outcomes
1 Sandra Fredman, Discrimination Law (Oxford University Press 2012).