Thesubject of this essay is to distinguish between formal equality and substantiveequality.
A general overview will be made on equality. Emphasis will be on thedifference between both equalities. Case law will be used to support argumentsfor and against substantive equality. InLaw, the term “discrimination” refers to the unequal treatment of an individualor a group of individuals. Instances can be as a result from harassment, inappropriateuse of words, name-calling inappropriate jokes, or display of cartoons orposters describing a person because of their color, race, gender or sex, sexualorientation e.t.c.1Equality has been described as a “treacherously simple concept”.
2The principle of equality is a fundamental assumption of a democratic society.It is noticed that there are similarities between equality and non-discrimination.3The idea of formal equality can be tracedback to Aristotle and his decree where he translated the meaning of equality is”things that are alike should be treated alike”.4This is the most widely leading understanding of equality today. The abovequote explains the principle of equal treatment of men and women and one lawshould apply to everyone regardless of race, sex, age etc. Formal equality isknown as legal equality and has a significant role in law especially in theUnited Kingdom and the united state Constitution that forms an ideal basis of”direct discrimination”.
5The equality act 2010 section 13 contains a definition of direct discriminationset out in the following term 61. Whena person discriminate against the same individual. If A treats B withdisregards than others .2. Ifit covers the age aspect does not discriminate proportionate treatment betweenmeans of accomplishing a lawful aim.3. Whena disability is the protected character, A does not discriminate if B is notdisabled.
4. Marriageand partnership infringement protects of parts 5(work) only when the other is marriedof a civil partner.5. Whenrace is the protected aspect less consideration detaches B from others.
6. Ifsex is the secured element-a. Lesssuitable treatment for a woman due to breast-feeding b. Ina case where it is a man no special treatment will be taken linking topregnancy or childbirth 7. Subsection(6)(a) does not apply for the purposes of Part 5 work).
8.This section is subject to sections 17(6) and 18(7).The above listed act referred to in section 13are as well defined in section 4 of the equality act 2010 as gender, age,disability, marriage, race, religion or belief, pregnancy and maternity, sexorientation, civil partnership.7 Before the act intoexistence were other parts of legislation to cover discrimination including:Sex discrimination act 1975, Race Relations Act 1976, Disability DiscriminationAct 1995 which mirrors the contained in the earlier now defunct legislation.
8 Formal equality systemsinstigate impel justice by treating “like cases as alike” it replies on theidea that same treatments equates to fair treatment.9 A good instance is whensomeone treats you less than another person in a similar situation for example during an interview, ajob applicant tells the potential employer that he has multiple sclerosis. Theemployer decides not to appoint him even though he’s the best candidate theyhave interviewed, because they assume he will need a lot of time off sick.10Achievingequal outcome and privilege no equality in treatment but equality in theoutcome is known as substantive.
11However, Aristotle describes equality as a form of dessert to “treat like aslike”. Aristotle would not render important or significant position to slavesand women due to he believed that unsatisfactory to free a man from noble act.12Thisis considered as indirect discrimination the equality act section 18 with 3 subsections states the following: 131. Aman victimized someone else if A applies to B an arrangement, model or practicewhich is oppressive in connection to a pertinent secured normal or B’s2. Forthe reasons for subsection (1), an arrangement, measure or practice isoppressive in connection to a significant secured normal for B’s(a)A applies, or would apply, it to people with whom B does not share thetrademark, (b)it puts, or would put,people with whom B shares the trademark at a specific weakness when contrastedand people with whom B does not share it, (c)it puts, or would put, B at thatinconvenience, and (d)A can’t indicate it to be a proportionatemethods for accomplishing a honest to goodness point. 3. Thepertinent features protected are- Age, Disability, Gender re-assignment,Marriage and civil partnership, race, Belief or religion, sex, sex orientation.
Although other substantive equality Theorist agreedthat justice should be looked aside from the similarities.14Also modern substantive equality would share supplementary resources to womenand minorities because they believe they deserve and should get the welfare.Due to that (they criticize “equal pay for equal work” statues and discern anddiscern anti-discrimination law).15An example of indirect discrimination For example, a job advert states that all applicants must have adriving licence. This puts some disabled people at a disadvantage because theymay not have a licence because, for example, they have epilepsy.
If the advertis for a bus driver job, the requirement will be justified. If it is for ateacher to work across two schools, it will be more difficult to justify.16Substantive equality that policies and exercise put in the right order to shutthe majority of clients, in upshot it maybe indirectly discriminatory creatingstandard discrimination.17The commission has notable authority to imply in legalcases that are within the areas of equality and human rights.18The facts of the case of Paulley v First group19the appeal pertain to the lawfulness of a bus company’s rule regarding theprovision of space on buses for wheelchair users.
Mr paulley being a wheelchairuser boarded the bus and met a woman with a pushchair and a sleeping child onthe 24th February 2012. The driver ask her to move push she claimedshe couldn’t push it and Mr Paulley had to wait for another bus. According tothe judgement section 29 of 2010 Act as a “public service provider” First groupmust not differentiate against a person who needs the service and not providingthe service.
20 Wheelchairspaces must be a priority which Mr paulley was deprived of his substantiveequality indirectly. The opposite case in opposite is the case of Bull andanother v hall and another 2013 UKSC 73.21The verdict announced by the Supreme Court was collectively agreed that theAppellant had unlawfully discriminated against the respondents and theappellant was dismissed by a majority of about 3-2 and the treatment presenteddirect discrimination. Lady Hale giving the leaving argument stated that “it isimportant not because direct discrimination can never be justified but becausethe justification for indirect discrimination are expressed in the legislation.22In the case of Vrountou v Cyprus23the judgement was finally set out in article 442 of the convention. Accordingto the decision of the court there was infraction of the article of theconvention that took the con junction with article 1 of protocol1and violationof article 14. However, the need was not found to cross check with article 1 ofprotocol 12. The discriminatory treatment of the applicant was taken intoconsideration by the court and revolved to article 14.
The court awarded EUR21500 due to pecuniary damages and EUR 6981 by the applicant for the costincurred before the Supreme Court.24In the case of rainbow v Milton Kenyes25The court found out rainbow was not directly or indirectly discriminated due tothe supply teacher could not be of age working although the court discovered thathe was indirectly discriminated in school. The court said if cost is going tobe acknowledged as a justification the evidence should be such that was forcedto take the discriminatory decision for “cost plus” reasons which was referredto “economic grounds” taken in earlier cases. This case also summit a validevidence to support justification argument which cost a problem in thetreatment it could depend on as long as it was not the only factor. it wouldnot be enough simply to ac in a discriminatory way.26The factors of the following cases Vrountou v Cyprus and Rainbow v Miltonkenyes differs due to the two different equality Vrountou v Cyprus27is a direct discrimination and Rainbow v Milton kenyes 28is an indirect age discrimination in equality legislation there is an importantdifference between direct and indirectdiscrimination.
They must be an unequal measure for direct and unequal measurefir indirect except on the basis of basic age for instance. A greater impactwould be mde on wokers above q certain age maybe not be unfair due to thereflect of the extra problems older people get to face when losing their jobs.29To conclude with,1 Definition of discrimination https://en.oxforddictionaries.com/definition/discrimination2 “The ideas of equality and non discrimination” http://www.equalrightstrust.org/ertdocumentbank/The%20Ideas%20of%20Equality%20and%20Non-discrimination,%20Formal%20and%20Substantive%20Equality.pdf 3 “The ideas of equality and non discrimination”http://www.equalrightstrust.org/ertdocumentbank/The%20Ideas%20of%20Equality%20and%20Non-discrimination,%20Formal%20and%20Substantive%20Equality.pdf 4 “The ideas of equality and non discrimination”http://www.equalrightstrust.org/ertdocumentbank/The%20Ideas%20of%20Equality%20and%20Non-discrimination,%20Formal%20and%20Substantive%20Equality.pdf 5 “The ideas of equality and non discrimination”http://www.equalrightstrust.org/ertdocumentbank/The%20Ideas%20of%20Equality%20and%20Non-discrimination,%20Formal%20and%20Substantive%20Equality.pdf6 Equality act 2010 s13.7 Equality act 2010 s148 Equality Act 2010 (guidance)9 Paul Stancil “substantiveequality and procedural justice”2016 p1010 Disability discrimination https://www.equalityhumanrights.com/en/advice-and-guidance/disability-discrimination11 “Equal opportunity commission “https://www.law.ox.ac.uk/sites/files/oxlaw/oscola_4th_edn_hart_2012quickreferenceguide.pdf> accessed 3rd january 201812 Paul Stancil “substantive equality and procedural justice”2016p1113 Equality act 2010 section 1814 Paul Stancil “substantive equality and procedural justice”2016p1115 Paul Stancil “substantive equalitu and procedural justice”2016p1116 Disability discrimination https://www.equalityhumanrights.com/en/advice-and-guidance/disability-discrimination.17 “Equal opportunity commission” http://www.eoc.wa.gov.au/substantive-equality18 “Equality and human rights commission” https://www.equalityhumanrights.com/en/legal-casework/legal-cases19 First group plc v paulley 2017UKSC 4 20 First group plc v Paulley2017UKSC 4https://www.supremecourt.uk/cases/docs/uksc-2015-0025-press-summary.pdf21 Bull and Another v Hall and another2013UKSC 73 22 Bull and Another v hall and Another 2013UKSC9323 Vrountou v Cyprus ECHR2015.24 Vrountou v Cyprus ECHR2015.http://www.equalrightstrust.org/ertdocumentbank/Case%20Summary%20-%20Vrountou%20v%20Cyprus.pdf25 Rainbow v Milton kenyes 1200104200726 rainbow v Milton kenyes 12001042007https://www.personneltoday.com/hr/indirect-discrimination-rainbow-v-milton-keynes-council/27 Vrountou v Cyprus ECHR2015.28 Rainbow v Milton Kenyes1200104200729 What is the difference ?direct and indirect discrimination http://www.acas.org.uk/index.aspx?articleid=4614