Formal equality

Formal equality occurs when ‘like’ cases are treated ‘alike’1, and is considered to be the most obvious meaning, aligned with symmetrical equality and focuses on consistent treatment of individuals rather than outcomes2. A difficulty with formal equality is determining when likes are alike3. Likewise, it has been seen that equally bad treatment can be offered in order to achieve formal equality, leading to a levelling down of benefits when equality is claimed4.

In the UK context, the Equality Act 2010 (the EqA 2010) eschews a form of formal equality with its direct discrimination5 and failure to make reasonable adjustments6 provisions, as both require an actual or theoretical comparator7. In other words, unless it can be proved that the discrimination would not have happened but for8 the relevant protected characteristic, a finding of discrimination cannot be made. By way of an example, in London Borough of Lewisham v Malcolm9, a claim for disability-related discrimination10. )), was rejected by the House of Lords as the eviction of a schizophrenic tenant, when compared with a non-schizophrenic tenant, would have nonetheless occurred despite the fact that he had a disability, that is, ‘like for like’. If, instead of schizophrenic, Malcolm was Deaf and the Council would have treated a hearing tenant in the same way, such a claim would have also been unsuccessful due to the comparator test. Although disability-related discrimination is no longer a type of discrimination under the EqA 2010, the comparator test is still in use for direct discrimination and failure to make reasonable adjustments.

  1. B Hepple, Equality: The Legal Framework (2nd edn, Hart Publishing 2014) 21. []
  2. L Vickers, ‘Promoting Equality or Fostering Resentment? The Public Sector Equality Duty and Religion and Belief’ (2011) 31(1) Legal Studies 135, 147. []
  3. Hepple (n 1) 24. []
  4. ibid. []
  5. EqA 2010, s 13(1). []
  6. ibid s 21. []
  7. EqA 2010, ss 13(1) and 20(3). []
  8. James v Eastleigh Borough Council [1990] IRLR 288. []
  9. [2008] IRLR 700. []
  10. This was a type of disability discrimination under s 3A of the Disability Discrimination Act 1995 that was repealed by the EqA 2010 and replaced with discrimination arising from disability (s 15(1 []

Rob

Deaf, hubby to Rachel, dad to Corey, Libby and Emily, Solicitor, Lecturer in Legal Practice at University of South Wales, PhD student at University of Leicester.

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