Discrimination Law and the Language of Torts in the UK Supreme Court
Posted: 19 Jun 2019
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: Suggested Citation