Human Rights and Discrimination
The Human Rights Act 1998 (HRA), which incorporates the rights contained in the European Convention of Human Rights (the Convention) into UK law, is also relevant in challenging discrimination. Unlike UK equality legislation, the HRA can only be enforced directly against public bodies, such as the police or a local authority and private bodies exercising public functions. However, courts and tribunals are themselves public bodies and must interpret and apply legislation in a way that is compatible with the Convention, even when the parties to the dispute are not public bodies. Moreover, it is possible to rely on the Convention in any court or tribunal proceedings, including for example proceedings in an Employment Tribunal, as the court must act compatibly with the Convention when making its decision.
Article 14 of the Convention prohibits discrimination on many grounds including sex, race, religion, political opinion as well as ‘any other status’. ‘Other status’ has been interpreted broadly to cover, for example, marital status, sexuality, financial or employment status, physical or mental ability. Article 14 is not a free standing guarantee of equal treatment or a prohibition on discrimination more generally. Rather, it prohibits discrimination in respect of access to other Convention rights and is intended to guarantee equality before the law of the Convention.
Article 14 must be used in combination with one or more of the other Articles in the Convention. The other right need not have been breached, but the facts complained of must at least come within the ambit of the substantive right. By way of example, men who have been widowed have used Article 14, together with Protocol 1, Article 1 (protection of property rights) to argue that benefits which were paid to women when their husbands died should also be paid to men when their wives died. They were able to use Article 1 Protocol 1 because benefits can sometimes count as property for the purposes of this Article, so a difference of treatment in respect of benefits came within the ambit of Article 1 Protocol 1.
It is only differences in treatment of people in analogous situations which fall within Article 14 and thus far the European Court of Human Rights (ECHR) has interpreted this condition quite strictly. However, there is no requirement that the difference in treatment has caused a detriment to the complainant.
The right not to be discriminated against is not absolute, and discrimination can be justified if this is necessary to achieve a legitimate aim. Discrimination will only be ‘necessary’ if the importance of the aim to be achieved is proportionate to the impact that the discrimination will have on the individual who is being discriminated against. There are a number of areas where the ECHR has recognised that it will take very weighty reasons to justify discriminatory measures. These areas include sex and race, but not sexual orientation or disability as yet.
There have been several cases in British courts where people have used Article 14 to enforce their right not to be discriminated against in the enjoyment of other Convention rights. One example is a well-known case which held that housing legislation should be interpreted so as to give homosexual couples the same rights with regard to succession to tenancies as married couples.
Although Protocol 12 of the Convention establishes a free-standing right to protection from discrimination, the UK has not signed this Protocol.
Article 14 of the Convention prohibits discrimination on many grounds including sex, race, religion, political opinion as well as ‘any other status’. ‘Other status’ has been interpreted broadly to cover, for example, marital status, sexuality, financial or employment status, physical or mental ability. Article 14 is not a free standing guarantee of equal treatment or a prohibition on discrimination more generally. Rather, it prohibits discrimination in respect of access to other Convention rights and is intended to guarantee equality before the law of the Convention.
Article 14 must be used in combination with one or more of the other Articles in the Convention. The other right need not have been breached, but the facts complained of must at least come within the ambit of the substantive right. By way of example, men who have been widowed have used Article 14, together with Protocol 1, Article 1 (protection of property rights) to argue that benefits which were paid to women when their husbands died should also be paid to men when their wives died. They were able to use Article 1 Protocol 1 because benefits can sometimes count as property for the purposes of this Article, so a difference of treatment in respect of benefits came within the ambit of Article 1 Protocol 1.
It is only differences in treatment of people in analogous situations which fall within Article 14 and thus far the European Court of Human Rights (ECHR) has interpreted this condition quite strictly. However, there is no requirement that the difference in treatment has caused a detriment to the complainant.
The right not to be discriminated against is not absolute, and discrimination can be justified if this is necessary to achieve a legitimate aim. Discrimination will only be ‘necessary’ if the importance of the aim to be achieved is proportionate to the impact that the discrimination will have on the individual who is being discriminated against. There are a number of areas where the ECHR has recognised that it will take very weighty reasons to justify discriminatory measures. These areas include sex and race, but not sexual orientation or disability as yet.
There have been several cases in British courts where people have used Article 14 to enforce their right not to be discriminated against in the enjoyment of other Convention rights. One example is a well-known case which held that housing legislation should be interpreted so as to give homosexual couples the same rights with regard to succession to tenancies as married couples.
Although Protocol 12 of the Convention establishes a free-standing right to protection from discrimination, the UK has not signed this Protocol.
