Direct and Indirect Discrimination: Is There Something in between?

Direct and Indirect Discrimination: Is There Something in between?

Abstract

, Vol. 37, No. 4, © Industrial Law Society; all rights reserved. For permissions, please e-mail: journals.permissions@oxfordjournals.org. 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 difficult 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 ‘building blocks’ 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 ‘quasi-direct discrimination’. 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