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The
subject of this essay is to distinguish between formal and substantive equality.
A general overview will be made on equality. Emphasis will be on the difference
between both equalities. Case law will be used to support arguments both for
and against substantive equality.

In
law, the term “discrimination” refers to the unequal treatment of an individual
or a group of individuals. Instances can be as a result from harassment, inappropriate
use of words, name-calling inappropriate jokes, or display of cartoons or
posters describing a person because of their color, race, gender or sex, sexual
orientation e.t.c.1
Equality has been described as a “treacherously simple concept”.2
The principle of equality is a fundamental assumption of a democratic society.
It is noticed that there are Correspondence between equality and non-discrimination.3

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The idea of formal equality can be traced
back to Aristotle and his decree that the meaning of equality is “things that
are alike should be treated alike”.4
This is the most widely spread understanding of equality today. The above quote
explains the principle of equal treatment of men and women and one law should
apply to everyone regardless of race, sex, age etc. Formal equality is known as
formal, legal equality and has an important role in law especially in the
United Kingdom and the united state Constitution that forms an ideal basis of
“direct discrimination”.5
The equality act 2010 section 13 contains a definition of direct discrimination
set out in the following term 6

1.    
An individual (A) discriminates
against the same person (B) if, because of a protected characteristic, A treats
B less favourably than A treats or would treat others.

2.    
If the protected characteristic is
age, A does not discriminate against B if A can show A’s treatment of B to be a
proportionate means of achieving a legitimate aim.

3.    
If the protected characteristic is
disability, and B is not a disabled person, A does not discriminate against B
only because A treats or would treat disabled persons more favourably than A
treats B.

4.    
If the protected characteristic is
marriage and civil partnership, this section applies to a contravention of Part
5 (work) only if the treatment is
because it is B who is married or a civil partner.

5.    
If the protected characteristic is
race, less favourable treatment includes segregating B from others.

6.    
If the protected characteristic is
sex—

    
(A) less favourable treatment of a woman includes less favourable
treatment of her because she is breast-feeding;

(B)in a case
where B is a man, no account is to be taken of special treatment afforded to a
woman in connection with pregnancy or childbirth.

7. Subsection
(6)(a) does not apply for the purposes of Part 5 (work).

8.This section is subject to sections 17(6) and 18(7).

The above listed act referred to in section 13
are as well defined in section 4 of the equality act 2010 as gender, age,
disability, marriage, race, religion or belief, pregnancy and maternity, sex
orientation, civil partnership.7 Before the act into
existence were other parts of legislation to cover discrimination including:
Sex discrimination act 1975, Race Relations Act 1976, Disability Discrimination
Act 1995 which mirrors the contained in the earlier now defunct legislation.8 Formal equality systems
instigate impel justice by treating “like cases as alike” it replies on the
idea that same treatments equates to fair treatment.9 A good instance is when
someone treats you less than another person in a similar situation for example during an interview, a
job applicant tells the potential employer that he has multiple sclerosis. The
employer decides not to appoint him even though he’s the best candidate they
have interviewed, because they assume he will need a lot of time off sick.10

Achieving
equal outcome and privilege no equality in treatment but equality in the
outcome is known as substantive.11
However, Aristotle describes equality as a form of dessert to “treat like as
like”. Aristotle would not render important or significant position to slaves
and women due to he believed that unsatisfactory to free a man from noble act.12This
is considered as indirect discrimination the equality act section 18 with 3 sub
sections states the following:        13                                                                                             (1)A person (A) discriminates against another (B) if A
applies to B a provision, criterion or practice which is discriminatory in
relation to a relevant protected characteristic of B’s.

(2)For the purposes of subsection (1), a provision, criterion or
practice is discriminatory in relation to a relevant protected characteristic
of B’s if—

(a) A applies, or would apply, it to persons with whom B does not share
the characteristic,

(b ) It puts, or would put, persons with whom B shares the
characteristic at a particular disadvantage when compared with persons with
whom B does not share it,

(c) It puts, or would put, B at that disadvantage, and

(d ) A cannot show it to be a proportionate means of achieving a
legitimate aim.

(3) The relevant protected characteristics are—

·      
Age;

·      
Disability;

·      
Gender reassignment;

·      
Marriage and civil partnership;

·      
Race;

·      
Sex;

·      
Sexual orientation.                                                                                                                   Although other
substantive equality Theorist agreed that justice should be looked aside from
the similarities.14
Also modern substantive equality would share supplementary resources to women
and minorities because they believe they deserve and should get the welfare.
Due to that (they criticize “equal pay for equal work” statues and discern and
discern anti-discrimination law).15
An example of indirect discrimination For example, a job advert states that all applicants
must have a driving licence. This puts some disabled people at a disadvantage
because they may not have a licence because, for example, they have epilepsy.
If the advert is for a bus driver job, the requirement will be justified. If it
is for a teacher to work across two schools, it will be more difficult to
justify.16
Substantive equality that policies and exercise put in the right order to shut
the majority of clients, in upshot it maybe indirectly discriminatory creating
standard discrimination.17

The commission has notable authority to imply in legal
cases that are within the areas of equality and human rights.18
The facts of the case of Paulley v First group19
the appeal pertain to the lawfulness of a bus company’s rule regarding the
provision of space on buses for wheelchair users. Mr paulley being a wheelchair
user boarded the bus and met a woman with a pushchair and a sleeping child on
the 24th February 2012. The driver ask her to move push she claimed
she couldn’t push it and Mr Paulley had to wait for another bus. According to
the judgement section 29 of 2010 Act as a “public service provider” First group
must not differentiate against a person who needs the service and not providing
the service.20 Wheelchair
spaces must be a priority which Mr paulley was deprived of his substantive
equality indirectly. The opposite case in opposite is the case of Bull and
another v hall and another 2013 UKSC 73.21
The decision taken by the Supreme Court was collectively agreed that the
Appellant had unlawfully discriminated against the respondents and the
appellant was dismissed by a majority of about 3-2 and the treatment presented
direct discrimination. Lady Hale giving the leaving argument stated that “it is
important not because direct discrimination can never be justified but because
the justification for indirect discrimination are expressed in the legislation.22
In the case of Vrountou v Cyprus23
the judgement was finally set out in article 442 of the convention. According
to the decision of the court there was infraction of the article of the
convention that took the con junction with article 1 of protocol1and violation
of article 14. However, the need was not found to cross check with article 1 of
protocol 12. The discriminatory treatment of the applicant was taken into
consideration by the court and revolved to article 14. The court awarded EUR
21500 due to pecuniary damages and EUR 6981 by the applicant for the cost
incurred before the Supreme Court.24
In the case of rainbow v Milton Kenyes25
The court found out rainbow was not directly or indirectly discriminated due to
the supply teacher could not be of age working although the court discovered that
he was indirectly discriminated in school. The court said if cost is going to
be acknowledged as a justification the evidence should be such that was forced
to take the discriminatory decision for “cost plus” reasons which was referred
to “economic grounds” taken in earlier cases. This case also summit a valid
evidence to support justification argument which cost a problem in the
treatment it could depend on as long as it was not the only factor. it would
not be enough simply to ac in a discriminatory way.26
The factors of the following cases Vrountou v Cyprus and Rainbow v Milton
kenyes differs due to the two different equality Vrountou v Cyprus27
is a direct discrimination and Rainbow v Milton kenyes 28
is an indirect age discrimination in equality legislation there is an important
difference  between direct and indirect
discrimination. They must be an unequal measure for direct and unequal measure
fir indirect except on the basis of basic age for instance. A greater impact
would be mde on wokers above q certain age maybe not be unfair due to the
reflect of the extra problems older people get to face when losing their jobs.29

To conclude with,

1 Definition of discrimination https://en.oxforddictionaries.com/definition/discrimination

2 “The ideas of equality and non discrimination”
http://www.equalrightstrust.org/ertdocumentbank/The%20Ideas%20of%20Equality%20and%20Non-discrimination,%20Formal%20and%20Substantive%20Equality.pdf

 

3 “The ideas of equality and non discrimination”
http://www.equalrightstrust.org/ertdocumentbank/The%20Ideas%20of%20Equality%20and%20Non-discrimination,%20Formal%20and%20Substantive%20Equality.pdf

 

4 “The ideas of equality and non discrimination”
http://www.equalrightstrust.org/ertdocumentbank/The%20Ideas%20of%20Equality%20and%20Non-discrimination,%20Formal%20and%20Substantive%20Equality.pdf

 

5 “The ideas of equality and non discrimination”
http://www.equalrightstrust.org/ertdocumentbank/The%20Ideas%20of%20Equality%20and%20Non-discrimination,%20Formal%20and%20Substantive%20Equality.pdf

6 Equality act 2010 s13.

7 Equality act 2010 s14

8 Equality Act 2010 (guidance)

9  Paul Stancil “substantive
equality and procedural justice”2016 p10

10 Disability discrimination https://www.equalityhumanrights.com/en/advice-and-guidance/disability-discrimination

11 “Equal opportunity commission “https://www.law.ox.ac.uk/sites/files/oxlaw/oscola_4th_edn_hart_2012quickreferenceguide.pdf
> accessed 3rd january 2018

12 Paul Stancil “substantive equality and procedural justice”2016p11

13 Equality act 2010 section 18

14 Paul Stancil “substantive equality and procedural justice”
2016p11

15 Paul Stancil “substantive equalitu and procedural justice”2016p11

16 Disability discrimination https://www.equalityhumanrights.com/en/advice-and-guidance/disability-discrimination.

17 “Equal opportunity commission” http://www.eoc.wa.gov.au/substantive-equality

18 “Equality and human rights commission” https://www.equalityhumanrights.com/en/legal-casework/legal-cases

19 First group plc v paulley 2017UKSC 4

20 First group plc v Paulley2017UKSC 4

https://www.supremecourt.uk/cases/docs/uksc-2015-0025-press-summary.pdf

21 Bull and Another v Hall and another2013UKSC 73

 

22 Bull and Another v hall and Another 2013UKSC93

23 Vrountou v Cyprus ECHR2015.

24 Vrountou v Cyprus ECHR2015.
http://www.equalrightstrust.org/ertdocumentbank/Case%20Summary%20-%20Vrountou%20v%20Cyprus.pdf

25 Rainbow v Milton kenyes 12001042007

26 rainbow v Milton kenyes 12001042007

Indirect discrimination: Rainbow v Milton Keynes Council

27 Vrountou v Cyprus ECHR2015.

28 Rainbow v Milton Kenyes12001042007

29 What is the difference ?direct and indirect discrimination

http://www.acas.org.uk/index.aspx?articleid=4614

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