Equality

Roberts v Hopwood [1925]

Roberts v Hopwood [1925] AC 578 (3 April 1925]

Harriet Samuels, University of Westminster (judgment)

Stephanie Palmer, Cambridge University (commentary)

Poplar Borough Council decided to pay its workers a minimum wage, including the women who were paid the same wages as men. In practice, this meant that the workers were paid above the market rate. While the Metropolis Management Act 1855 permitted the council to pay such wages as it 'thought fit', the House of Lords upheld a challenge to the legality of the council's decision on the grounds that it owed a fiduciary duty to the ratepayers whose rates were paying the wages. The council's decision was also held to be unlawful because it had taken into account irrelevant considerations and "allowed themselves to be guided in preference by some eccentric principles of socialistic philanthropy, or by a feminist ambition to secure the equality of the sexes in the matter of wages in the world of labour" (Lord Atkinson).

Del Monte Foods v Mundon [1980]

Del Monte Foods v Mundon [1980] ICR 694 (19 March 1970)

Grace James and Rachel Horton, University of Reading (judgment)

Gwyneth Pitt, Kingston University (commentary)

This case is often cited as authority for the proposition that, in order for a dismissal to be pregnancy-related (and hence automatically unfair and discriminatory), knowledge of pregnancy is necessary at the time the decision to dismiss is made. If unsympathetically applied, this case provides employers with an opportunity to easily evade the law, even where there is evidence, for example, of a hasty dismissal or redundancy situation, of poor management such as a lack of warnings in the event of dismissal for misconduct or capability, or that other colleagues and/or management staff knew of the pregnancy.

James v Eastleigh Borough Council [1990]

James v Eastleigh Borough Council [1990] UKHL 6 (14 June 1990)

Aileen McColgan, King's College London and Matrix Chambers (judgment)

Joanne Conaghan, University of Kent (commentary)

In this case, the House of Lords established the 'but for' test for direct discrimination. While this test has proved useful in disallowing any appeal to benign motivation in relation to discrimination, it has also entailed a formalistic, symmetrical approach to discrimination. By contrast, in their application of constitutional equality provisions, South Africa's Constitutional Court and Canada's Supreme Court have adopted substantive understandings of equality, for example in terms of the exacerbation of disadvantage, which suggest the possibility of a feminist 'third way' between formalism and untrammeled judicial discretion in the identification of discrimination.

 

Wilkinson v Kitzinger [2006]

Wilkinson v Kitzinger & Ors [2006] EWHC 2022 (Fam) (31 July 2006)

Rosie Harding, Keele University (judgment)

Karon Monaghan, QC, Matrix Chambers (commentary)

A lesbian couple who entered a same-sex marriage in Canada sought to have their marriage recognised as such in the UK. They argued that the fact that their relationship would be recognised only as a civil partnership infringed their rights to private life and to marry under Articles 8 and 12 of the ECHR, and to enjoy those rights without discrimination under Article 14. Their case was dismissed by the High Court. Although the court held that they had been discriminated against on the basis of their sexual orientation contrary to Article 14 in conjunction with Article 12, it also considered that this discrimination was justified by the legitimate aim of preserving and supporting traditional marriage as the best context in which to procreate and nurture children, and as the form of relationship that "best encourages stability in a well regulated society". The provision of civil partnerships as an alternative for same sex couples, in furtherance of that aim, was held to be appropriate and not disproportionate to its adverse impact.

EM (Lebanon) v Secretary of State for the Home Department [2008]

EM (Lebanon) (FC) v Secretary of State for the Home Department [2008] UKHL 64 (22 October 2008)

Karon Monaghan QC, Matrix Chambers (judgment)

Judy Walsh, University College Dublin (commentary)

This case concerned a claim by a Muslim woman that her removal from the UK to Lebanon (from whence she had fled) would constitute a flagrant breach (as is required in a non-refoulement context) of Articles 8 (family life) and 14 (non-discrimination) of the ECHR. The claimant had been married to a Muslim man in Lebanon with whom she had had a child (AF). After the claimant and her husband were divorced, the child was permitted to remain living with the claimant. However, Lebanese Islamic law required that physical custody passed to the father or another male relative when the child reached the age of seven. Thereafter, at best, the mother would enjoy only supervised access. The House of Lords concluded that transferring the physical custody of AF to his father would, in the circumstances of this case, destroy the existing family life of the claimant and child and that therefore, exceptionally, Article 8 precluded the claimant's removal. However, in relation to her Article 14 claim, they failed to engage critically and substantively with the gender discriminatory nature of the Lebanese law. My feminist judgment will reconsider this aspect of the case based on a discussion of the international and universal nature of gender equality norms.