Direct and Indirect Discrimination: Is There Something in between?
Abstract, Vol. 37, No. 4, Â© Industrial Law Society; all rights reserved. For permissions, please e-mail: email@example.com. COMMENTARY 1. INTRODUCTION Over the past 2 years, discrimination lawyers have watched the courts struggle with a series of indirect discrimination claims.1 The result has been a number of confusing judgements which add complexity to an already overly difï¬cult area of employment law.2 The failure adequately to analyse the concept of indirect discrimination in these cases has its roots, in our view, in a conceptual failure to identify the âbuilding blocksâ of discrimination claims and to differentiate between the constituent elements of direct discrimination, indirect discrimination and the form of discrimination; discovered by the European Court of Justice in Enderby v Frenchay Health Authority3 which we shall refer to as âquasi-direct discriminationâ. The purpose of this article is to suggest that there are, contrary to the orthodox view, in fact three distinct forms of discrimination; to analyse the nature of these three forms; and, further, to attempt to use that conceptual framework to re-evaluate the recent decisions of the Court of Appeal and House of Lords in order to seek out a more structured rationale for the outcomes reached. 1 Secretary