Discrimination Law and the Language of Torts in the UK Supreme Court

Posted: 19 Jun 2019

See all articles by Alice Taylor

Alice Taylor

Australian National University

Liam Elphick

The University of Western Australia Law School; Melbourne Law School; La Trobe Law School; Berkeley Center on Comparative Equality and Anti-Discrimination Law

Date Written: June 11, 2019

Abstract

Discrimination law is difficult to categorise, intersecting with various other areas of law including human rights, employment and constitutional law. However, in the United Kingdom (UK), discrimination law has been categorised both in the legislative text and by the UK Supreme Court as a statutory tort. Further, when constructing the tests associated with proving and justifying discriminatory conduct, the courts in the UK have drawn on the language and tests associated with negligence in developing and understanding the principles of discrimination law. This paper will explore whether the use of these tortious principles enables or limits discrimination law’s capacity to address its broad societal aims. To do so, it will focus specifically on the UK Supreme Court’s use of the ‘but for’ test to determine the causative element of direct discrimination. This test has been useful to claimants seeking to prove discriminatory conduct through removing the need for malice or intention in order for conduct to be considered direct discrimination. However, this paper will argue that ultimately, the individualistic and restrictive aspects of the ‘but for’ test limit the capacity for discrimination law to address its broader societal aims.

Keywords: discrimination law, tort law, UK Supreme Court, but for test, causation

JEL Classification: K13, K31

Suggested Citation

Taylor, Alice and Elphick, Liam, Discrimination Law and the Language of Torts in the UK Supreme Court (June 11, 2019). Available at SSRN: https://ssrn.com/abstract=3402216

Alice Taylor

Australian National University ( email )

Canberra, Australian Capital Territory 2601
Australia

Liam Elphick (Contact Author)

The University of Western Australia Law School ( email )

M253
35 Stirling Highway
Crawley, Western Australia 6009
Australia

HOME PAGE: http://https://research-repository.uwa.edu.au/en/persons/liam-elphick

Melbourne Law School ( email )

185 Pelham Street
Melbourne, VIC 3010
Australia

HOME PAGE: http://https://law.unimelb.edu.au/students/grd/students/liam-elphick

La Trobe Law School ( email )

La Trobe University
Bundoora, VIC 3083 3142
Australia

HOME PAGE: http://https://scholars.latrobe.edu.au/display/lelphick

Berkeley Center on Comparative Equality and Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

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