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Research approach to dissertation...

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Research problem and interest

The complex topic of anti-discrimination laws, both domestic and European, gives the chance to explore an evolving and politically relevant area of law with controversial issues surrounding its effectiveness and economic impact. Variables range from the social to the economic and political; posing a challenge to legislators tackling unemployment rates, tight family budgets and most worryingly, weakened legal protection.1 In order to look at what direction the UK should take in the new legislative opportunity that arises from leaving the European Union, understanding equality as a conception, critically analysing its strengths and shortcoming in the context of direct discrimination, indirect discrimination and justifiability issues is the best way to gain a deeper understanding of the conceptual basis of anti-discrimination legislation. Having done this, proposing an alternative and comparing its in the same three contexts will allow for the most desirable approach to be identified and recommended for future policy-making. The UK formally withdrew from the European Union on the 31st f January 2020, 2 making it no longer bound by neither current nor future laws. Gender equality is a core value of the EC, as seen in the Charter of Fundamental Rights of the EU prohibiting any gender-based discrimination.3 A decision was made by the UK government to prevent a crisis and ensure legal continuity . This decision was to uphold derived rights retained EU law. The likely conclusions that I will come to : 

Equality as an approach to anti-discrimination rights is only effective to a certain extent, as it justifies undesirable results such as levelling down.

1 Tabea Boeglin, 'Role of Brexit in Gender Equality' (European Student Think Tank, 10

August 2020) accessed 2 January 2021 2 Ibid. 3 Charter of Fundamental Rights of the EU Art. 21; Ibid. Art 23



The right to work allows for the same processes as equality, but prevents levelling down and covers a wider array of characteristics than equality, which is limited by a proscribed list of characteristics.

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The right to work does, however, have justifiability issues.

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Overall, the right to work is more desirable and would be a beneficial approach for future policy-making.

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The EU’s influence has been crucial in developing UK employment laws, which were almost non-existent on the date of its membership and have mostly been implemented from the EU and its more socially progressive Scandinavian states.

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Brexit will prove to be harmful to the pursuit of gender equality in the UK. Although the EU’s interest is declining due to an austerity period that puts more focus on financial and employment policies- its overall evolution is cumulatively that of advance. Any move away from the European model, especially in light of new initiatives planned for the next ten years, will prove to be negative for reducing precarious work in the current ‘gig economy’ in which women are affected the most (as the highest percentage of part-time workers are in fact women) and in making the markets more inclusive. Unintended effects on the market following the end of free movement will, however, lessen inequality due to the relocation of top-earning jobs4 and a possible increase in minimum wages.5

Literature review

The research question invites two main considerations: considering the effectiveness of the current approach to gender equality in the UK and what will the effects of Brexit be. The first 4 Danny Dorling, ‘The curve of inequality and the Brexit Way’ (Brexit Blog, LSE 2019); Stewart, Cooper & Schutes 68(1) 35 5 ONS ‘Employee earnings in the UK: 2019’

has been analysed in depth by a series of legal philosophers such as Dworkin, 6 Rawls,7 Sen8 and Hart.9 The equality approached has been questioned for its justification of unwanted results such as levelling down, and a popular alternative proposal that satisfies all the requirements in terms of direct and indirect discrimination, but does not raise as many justifiability issues is the right to work and its ‘work values.’10 Although presenting constraints on business freedom and inefficiency and un-competitiveness, it is still widely accepted to be a superior alternative to equality.11 Due to the recent nature of the second, there has not been much time for there to be much written on predicted developments.

The first theme to be considered is the critical analysis of conceptions of equality in terms of two dimensions: the moral and analytic. This is done by exploring the conceptual, sociolegal and then justifiability aspects of equality, followed by the same the approach for the right to work. This allows for an informed conclusion after a comparative exercise to ascertain which is superior.

The second key issue is whether current legislation is successful in meeting gender equality goals such as reducing the pay gap, ensuring equal access to employment, preventing discrimination and taking into account special circumstances such as pregnancy, maternity or care. This will be done by looking at evolution since the 1970s, the impact of EU law and

6 Richard Dworkin, Law's Empire (Harvard University Press 1986) 70; R Dworkin, 'Sovereign Virtue, The Theory and Practice of Equality' [2002] 19(2) Journal of Applied Philosophy Ch 2 7 John Rawls, A Theory of Justice ( Harvard University Press 1971) 8 Amartya Sen, ‘Equality of What?’ (Stanford University, 1979) 9 HLA Hart, The Concept of Law (Oxford University Press 1961) 159 10 Joseph Raz, The Morality of Freedom (Oxford University Press 1986) 225 11 Friedrich Hayek, The Constitution of Liberty (London: Routledge & Kegan Paul 1960)

ECJ rulings on national legislation and issues with implementation. Legal historians such as Dickens,12 Hasting13 and Pillinger14 have written extensively on this.

The third theme to consider is which direction UK legislators will take when drafting postBrexit laws. Tendencies of the Labour, Conservative and Coalition governments in the past 40 years will have been mentioned in the second issue, but external influences on the labour market15 and bleak financial forecasts16 mean that the potential result will be a combination of continuity and change. Brexit -Assess whether the end of European supremacy over national courts will be positive or negative in terms of the development of gender equality -What legislation will look like at the moment of withdrawal. - European Union (Withdrawal Agreement) Bill -Political perspective will allow to predict whether the UK government will stick to European models or not.

Conclusion

 Equality is not the best approach; the right to work is superior.  The EU’s influence has been crucial but still faced challenges with implementation and ECJ rulings. 12 L Dickens, ‘The Road is Long; Thirty years of Equality Legislation in Britain’ (2007) 43 British Jouranl of Industrial Relations 13 Sue Hastings, 'The Equal Pay Act: Its Impact on Collective Bargaining, Grading and Pay ' (Union History, n/a) accessed 7 May 2021 14 J Pillinger, Feminising the Market: Women's Pay and Employment in the European Community (Macmillan 1992) 15 CBI, ‘Brexit and economic impact- where are we now? Implications for the UK economy since the vote to leave’ (The Business View, CBI, 2019) 16 Ibid

 It is likely that future laws will favour employers, a more de-regulated market and have less emphasis on equality due to an austerity period caused by Brexit’s negative financial impact on the employment market.17

 Straying away from the EU’s model will be detrimental.

4. Chosen methodology

Firstly, a conceptual analysis is carried out in all chapters as it allows for a wide range of resources to explore moral, social, legal and political perspectives. It reveals the meanings of equality and the right to work through their conceptions concerning ant-discrimination and the political processes present in shaping UK anti-discrimination legislation.

Comparative research allows for the identification of strengths and shortcomings in both approaches to equality as well as measurements of the development of UK equality legislation against an EU backdrop.

Leading on from this, a desk-based critical analysis allows an understanding of the scope to determine whether the current equality approach should be rejected in favour of the right to work. Likewise, analyzing the shortcomings and strengths of EU legislation aided further in assessing the potential impact of Brexit on gender equality in the UK.

Finally, doctrinal analysis allows to critically analyse case law where the antidiscrimination legislation has been implemented. This is crucial in determining which 17 Benjamin Nabarro, ‘UK economic outlook in four Brexit scenarios’ (IFS, October 2019) accessed 11 January 2020

conceptual approach is the most desirable.

Limits to this research have been that I could neither interview employers (or employees ) nor carry out quantitative research to add a practical element due to the 10,000-word limit; therefore beyond the scope of an undergraduate dissertation.

5. Annotated reliable sources

K Simons, 'On Equality, Bias Crimes, and Just Deserts'18

This is a secondary source – a peer-reviewed article from an academic journal by a legal philosopher. It would be included in Chapter 1 as it discusses the moral value behind equality as an approach to legally-enforceable rights whilst taking into account its comparative nature which prevents accurate rule implementation as that would require “specified forms of treatment to members of a [special class].”19 This is useful when building arguments for and against equality and comparing it to the successes and limitations of the right to work.

J. Raz ‘On the Nature of Rights’20

Raz is a legal philosopher whose interest theroy on rights is essential in developing an opposing arguments to that proposed by Simons. He defends the jural relation between rights and duties. In other words, individual interests are considered grounds for a right, and 18 Kenneth Simons, 'On Equality, Bias Crimes, and Just Deserts' [2000] 91(1) Journal of

Criminal Law and Criminology 237 19 Ibid. 20 Joseph Raz, 'On the Nature of Rights' [1984] 93(370) Mind 194-214

rights are grounds for a duty (with duties potentially able to become reasons for action, both legal and non-legal). This interest, however, must hold sufficient relevance to créate a duty in others.21

Razpredelenie22

This European law case touches on the concepts of direct and indirect racial discrimination and the definition of the ground of racial and ethnic ground of discrimination. Putting forward a reason for a suffered disadvantage was ruled not to be necessary, merely having proof of that disadvantage was enough. In a later EU case, Naeem, the argument is made that a conflict is created with s19 of the Equality Act23 which states that disadvantage is linked to the group it is shared with.24 This would then be put into contrast with narrower interpretations of the wording of the law and less focus on social rights.

Bob Jessop 'From Thatcherism to New Labour'25

Bob Jessop is a distinguished Lancaster University sociology lecturer who has a particular interest in state theory and political economy who has won prizes for his book “Beyond the Regulation Approach: Putting Capitalist Economies in their place”.26 The peer-reviewed article explores how Conservative neo-liberalism is insufficient in justifying being the ‘Third Way’ and New Labour develops a new version of neo-liberalism, calling this the ‘Christian 21 Ibid.195 22 CHEZ Razpredelenie (Case C-83/14) [2015] IRLR 746

23 Equality Act 2010 24 Ibid. s19 (2)(d) 25 Bob Jessop, ‘From Thatcherism to New Labour: Neo-Liberalism, Workfarism, and Labour Market Regulation’ (Research Paper, Lancaster University)< : http://www.comp.lancs.ac.uk/sociology/soc131rj.pdf> 26 Bob Jessop and Ngoi-Ling Sum, Beyond the Regulation Approach: Putting Capitalist Economies in their Place (Edward Elgar Publishing Ltd 2006)

Socialist face’ of Thatcherism. His analysis of the continuities and discontinuities in employment law and labour market reforms, as well as the welfare state, gives essential socio-economic and political context to the laws responsible for governing gender equality. The Labour Party’s 1996 manifesto27 committed to either comply or explain reforms including the introduction of childcare and the EU’s social charter, with the EES recommending an improvement in childcare and 8 other employment measures every year until 2017.28 Since 1997 measures on work-family reconciliation have included three concepts: the first is easing the balance between employment and family responsibilities for women (men’s contribution and adult care appeared in a limited way later on), the second is improving part-time employment support and finally, the third is to move lone parents (mostly lone mothers) into employment in order to decrease child poverty rates and improve living standards. This is seen in the roll-out of pre-school education during the school term.29 The National Childcare Strategy introduced tax breaks as well as childcare tax credits for lower income families alongside the ‘New Deal For Lone Parents.’ 30

27 Bob Jessop, ‘From Thatcherism to New Labour: Neo-Liberalism, Workfarism, and Labour Market Regulation’ (Research Paper, Lancaster University)< : http://www.comp.lancs.ac.uk/sociology/soc131rj.pdf> 28 Colette Fagan and Jill Rubery, 'Advancing Gender Equality through European Employment Policy: The Impact of the UK’s EU Membership and the Risks of Brexit' [2018] 17(2) Social Policy and Society (Table 1) 307 29 Colette Fagan and Jill Rubery, 'Advancing Gender Equality through European Employment Policy: The Impact of the UK’s EU Membership and the Risks of Brexit' [2018] 17(2) Social Policy and Society (Table 3) 307-308 30 Department for Work and Pensions, 'New Deal for Lone Parents (NDLP)' (Datagovuk, January 2012) accessed 1 April 2020

Table of Cases

CHEZ Razpredelenie (Case C-83/14) [2015] IRLR 746

Table of Statutes

Charter of Fundamental Rights of the EU

Equality Act 2010

Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women [1975] OJ L45/19

Council Directive 75/129/EEC of 17 February 1975 on the approximation of the laws of the Member States relating to collective redundancies [1975] OJ L48/29

Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions [1976] OJ L39/40

Council Directive 77/187/EEC of 14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses [1997] OJ L61/26

Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) [2006] OJ L204/23

Bibliography

Books

CBI, ‘Brexit and economic impact- where are we now? Implications for the UK economy since the vote to leave’ (The Business View, CBI, 2019) ONS ‘Employee earnings in the UK: 2019’ (ONS, 2019)

Journals Boeglin T, 'Role of Brexit in Gender Equality' (European Student Think Tank, 10 August 2020) accessed 2 January 2021 Dorling D, ‘The curve of inequality and the Brexit Way’ (Brexit Blog, LSE 2019); Stewart, Cooper & Schutes 68(1) 35 Dworkin R, Law's Empire (Harvard University Press 1986) 70; R Dworkin, 'Sovereign Virtue, The Theory and Practice of Equality' [2002] 19(2) Journal of Applied Philosophy Ch 2 Fagan C and Rubery J, 'Advancing Gender Equality through European Employment Policy: The Impact of the UK’s EU Membership and the Risks of Brexit' [2018] 17(2) Social Policy and Society (Table 3) 307-308 Hart HLA, The Concept of Law (Oxford University Press 1961) 159 Hayek F, The Constitution of Liberty (London: Routledge & Kegan Paul 1960) Jessop B, ‘From Thatcherism to New Labour: Neo-Liberalism, Workfarism, and Labour Market Regulation’ (Research Paper, Lancaster University)< : http://www.comp.lancs.ac.uk/sociology/soc131rj.pdf> Nabarro B, ‘UK economic outlook in four Brexit scenarios’ (IFS, October 2019) accessed 11 January 2020 Phillinger J, Feminising the Market: Women's Pay and Employment in the European Community (Macmillan 1992) Rawls J, A Theory of Justice ( Harvard University Press 1971) Raz J, The Morality of Freedom (Oxford University Press 1986) 225 Raz J, 'On the Nature of Rights' [1984] 93(370) Mind 194-214 Sen A, ‘Equality of What?’ (Stanford University, 1979) Simons K, 'On Equality, Bias Crimes, and Just Deserts' [2000] 91(1) Journal of Criminal Law and Criminology 237 Websites Department for Work and Pensions, 'New Deal for Lone Parents (NDLP)' (Datagovuk, January 2012) accessed 1 April 2020...