The legality of positive discrimination

  • Sharon Morris

    Student thesis: Doctoral Thesis


    The purpose of this study is to determine the extent to which positive discrimination on the grounds of sex and race is permitted in employment under English law. After setting the social context, a moral framework for assessing the fairness of laws on positive discrimination is provided, and the increasing European Union support for positive discrimination is noted. An analysis of legal materials to discover the extent to which positive discrimination is allowed under European and English law shows that, although, generally speaking English law is less permissive than European law, European law still impacts upon English positive discrimination law, making it fairer. It argues that extending the English law to mirror European law will not necessarily result in improved sex or racial equality in the workplace, although reforms to update the English statutes could be useful to employers. Key Contributions to Existing Knowledge A comparison of Dworkin's right-based moral framework for the legal regulation of positive discrimination with Collins' 'social inclusion' model is presented. A unique review of European policy documents concerning employment discrimination and positive discrimination on the grounds of sex and race that underpin European laws on these matters is provided. A definition of positive discrimination is proposed. The implications of recent legal developments for the legality of positive discrimination under European and English law are analysed. Principles of European constitutional law are evaluated to identify the mechanisms by which European positive discrimination law affects English law and to determine whether public sector employers are granted greater legal powers to use positive discrimination under European law. How the House of Lords decision in Shamoon advances the law relating the the grounds of discrimination is explained. The law relating to the selection of parliamentary candidates is compared is compared with the statutory duties to promote equality placed upon public authorities. The academic discussion is consistently applied to the practicalities of the employment setting.
    Date of Award2007
    Original languageEnglish
    Awarding Institution
    • Nottingham Trent University

    Cite this