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Discrimination law and the ebb and flow of indirect effect in Britain

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Strained judicial interpretation of British discrimination law is not new; some of the leading House of Lords cases on the European Union law doctrine of Indirect Effect have concerned discrimination law. The interpretative obligation, to read national law in line with EU law, has seen words read in and like being treated with like according to changing mores. However, the disability discrimination case of EBR Attridge Law v Coleman [2010] I.C.R. 242 saw an entire sub-section being read in by an Employment Appeal Tribunal. This article briefly reviews the House of Lords’ approach in earlier cases, primarily through the prism of discrimination law, and then asks, following more recent Employment Appeal Tribunal cases concerning pregnancy discrimination and the protection from victimisation within the Equality Act 2010, whether the high-water mark for judicial re-writing has been reached in Britain and whether compliance with European law can better be attained in other ways.

This article firstly outlines the approaches previously adopted by the House of Lords regarding the interpretative obligation, primarily in relation to British discrimination law, before going on to consider the more extreme example in Attridge Law v Coleman (where an entire subsection was read into an Act) and then some subsequent developments in both case law and legislation, concerning pregnancy discrimination and victimization. It will chart the various approaches to interpretation, will consider whether the high-water mark for judicial re-writing has been reached in Britain and will suggest that compliance with European law can otherwise be better attained.
Original languageEnglish
Pages (from-to)119-136
JournalLiverpool Law Review
Volume37
Issue number3
Early online date6 Sep 2016
DOIs
Publication statusPublished - Oct 2016

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