United Kingdom Journals

Colin Bourn and John Whitmore, Anti-Discrimination Law in Britain, 3rd edition, Sweet & Maxwell 1996, 345 pp, ISBN 0 421 564 202, Sb £49.

Reviewed by Gwyneth Pitt

Professor of Law
University of Huddersfield

<sbusgjp@pegasus.hud.ac.uk>

Copyright © 1997 Gwyneth Pitt.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

This is the third edition of a book on discrimination law by these authors, although each has had a different title. Discrimination and Equal Pay was the first edition, published in 1989, but the name was changed to Race and Sex Discrimination for the second edition in 1993. In a flood of sex discrimination literature at the time, this was presumably to mark its distinctive feature of giving equal prominence to race discrimination law. The advent of the Disability Discrimination Act 1995 has presumably led to this further change, for this book retains the two principal virtues of its predecessors: it deals with all the grounds on which discrimination is outlawed: race, sex and disability, and it deals with all aspects of the law, including education and the provision of goods and services, as well as employment.

Unfortunately, the principal fault of the earlier versions ­ sloppy proof-reading ­ is also evident. To have the title misspelt on the back cover together with a different date of publication from that claimed inside is merely risible; misspelt case names and deficient references are only an irritant, but to have a Table of Codes of Practice apparently referring to two different codes on racial equality when in fact they are one and the same is more serious. Such errors may also be misleading, in a book now published in paperback and intended for the student market (although the price will put it beyond the reach of most).

The first chapter, on the Legal Framework for Equality Law, gives a brief and succinct account of the historical background to each of the main Acts. This is short on commentary but long on information. There is a very brief reference to the debate about what conception of equality the legislation should be trying to implement, but no philosophical discussion. This is followed by a masterly compendium of the EC dimension of sex equality law, deftly isolating and summarising each issue. Discrimination lawyers who are not EC law specialists will find this enormously useful.

Chapter 2 deals with the concept of discrimination in the context of sex and race discrimination. This substantial chapter deals both with the scope of the Sex Discrimination Act 1975 and the Race Relations Act 1976, and the concepts of direct and indirect discrimination, and discrimination by victimization. The exposition is generally clear, supported by discussion of relevant cases, and helpfully related throughout to the position under EC sex equality law. The tone is generally uncritical, however, with more of the attitude of the practitioner striving to reconcile the seemingly irreconcilable than the detached analysis of an independent critic.

This is particularly noticeable in the discussion of comparison issues in relation to direct discrimination. Reference is made to the feminist argument that discrimination based on comparison presupposes a male norm, with the saga of how the courts approached discrimination on grounds of pregnancy as the main exemplar of the problems of the comparative approach. However, the authors conclude disappointingly that in their view the comparative approach is appropriate, although pregnancy and maternity should be treated as exceptions, without further supporting argument. It is assumed, from the placing of the brief discussion of dress code cases straight after the discussion of pregnancy and maternity, that they recognise that dress codes (although not, apparently, sexual and racial harassment) raise the same problem, but the point is not pursued. Thus, they do not highlight the major problem with the comparative approach, namely its susceptibility to manipulation according to how the two things to be compared are actually framed (although pregnancy, dress code and sexual harassment cases all provide excellent examples of this).

The discussion of compensation for indirect discrimination in para 2­43 and 2­44 has not been properly updated, although the change in the law to allow compensation for indirect discrimination is mentioned, and surely it is time for a revision in tenses for footnote 18 p 69 (referring to the "Fair Employment Bill 1989 for Northern Ireland").

While the provisions of the Disability Discrimination Act 1995 are referred to in several places to highlight similarities and differences between that legislation and the Sex Discrimination and Race Relations Acts, the authors decided to treat disability discrimination in a separate chapter. This is understandable given the recent enactment of the Act and the absence of case law to date. The chapter provides a reasonable summary of the Act and the regulations made under it (albeit that they are not cited correctly in the text or in the index) although the practitioner bias is most obvious here. There is virtually no reference to the literature on disability discrimination law, and the discussion is clearly aimed at giving an overview and guide to approaching cases to a practitioner with a working knowledge of sex and race discrimination law. There is no contextual or critical analysis which means that the discussion, which cannot advance beyond the Act, Regulations, Code and Guidance, is rather dull.

Chapter 4, on the proof of direct discrimination, also reads strongly as practitioner's manual rather than student's text, its mission clearly being to inform rather than to stimulate thought. However, drawing as it obviously does on the authors' extensive practical experience, especially in the field of race discrimination, it is a most insightful and interesting guide to a number of thorny issues. To take just one example, the discussion of targets and quotas clearly differentiates the concepts, and justifies the use of the former in a brief but telling argument which analogises this sometimes emotive issue to commercial practices generally accepted as normal.

Chapter 5 deals with race and sex discrimination law specifically in relation to employment. While much of the discussion of recruitment, promotion and training and dismissal merely consists in examples of the application of principles already laid out in earlier chapters, it is convenient for a practitioner, and sometimes illuminating, to have this summary, and this presumably is the justification for the citation of numerous industrial tribunal decisions, which are of no value at all as precedents. This chapter is where positive action and positive discrimination, sexual and racial harassment, and vicarious liability are discussed. Again, the emphasis is on careful exposition of the law rather than critical analysis.

The substantial (53 pages) chapter on Equal Pay has obviously been completely recast and rewritten compared with the last edition ­ and small wonder. Again, the authors are to be commended for their thorough exposition, especially on pensions, to which they devote 15 pages. However, this is one area where dissonance between EC law and English law (and between recent and older ECJ decisions) is particularly acute, and one would have welcomed a confrontation of these difficult questions rather than a safe narrative which juxtaposes but does not deal with the difficulties revealed. Particular examples would be the term by term comparison issue (Hayward v Cammell Laird Shipbuilders Ltd [1988] AC 894, Barber v Guardian Royal Exchange Assurance Group [1990] ICR 616 and Leverton v Clwyd CC [1989] ICR 33) and the issue of pensions as pay (Newstead v Department of Transport [1988] ICR 332, Barber (supra) and Defrenne v Sabena (Defrenne No 3) [1978] ECR 1364).

Chapter 7, dealing with procedural matters including remedies for discrimination, will hold rather limited interest for students but considerably more for practitioners. Again, the authors' practical experience is deployed to advantage and, curiously, it is in this chapter that a more sustained critique of the present law is to be found.

One of the most useful features of this book is that it covers discrimination law in fields outside employment. This is an important area, although the paucity of case law means that it is often given insufficient attention. Chapter 8 deals with race and sex discrimination in relation to education; provision of goods, facilities and services; housing; planning, and certain exceptional areas such as sport, religion, charities and the position of barristers. It is surprising that there is no reference to Jepson v Labour Party [1996] IRLR 116 in the section on political parties. So far as disability discrimination law is concerned, the very important non­employment issues, including public transport, are dealt with separately in Chapter 3. As noted already, the rationale for treating disability discrimination separately is appreciated at this stage, but it is to be hoped that the discussion will be integrated at some future date, for in these areas particularly, the rationale for similarities and differences could lead to fruitful insights. Indeed, to prevent this chapter too often degenerating into a list of specific instances, it would be helpful if the authors were to step back from the minutiae of the law and consider the underlying philosophy sought to be served by what often may seem an inconsistent set of provisions. Such a consideration would be enlightening and would give welcome coherence to the discussion.

Given that one of the authors is a former legal director of the Commission for Racial Equality, it is not surprising to find that the chapter on the Commission's investigative and enforcement powers is authoritatively written with a considerable feel for the practical constraints. The detail found here is not found in other books, and so may be justified on that account.

The same can be said of the final chapter, entitled 'Public Aspects of Discrimination Law'. Under this rubric is brought an account of the availability of judicial review in discrimination proceedings and contract compliance (still of interest despite the Local Government Act 1988), together with bits and pieces such as Crown liability, national security exceptions and acts done under statutory authority. Again, the careful differentiation of sex discrimination law and race relation law in these regards is helpful.

Overall, the new edition of Bourn and Whitmore will retain its place as the leading general account of discrimination law deservedly, and not merely because it is the only, and only up-to-date, account available. Its greatest strength is the careful and comprehensive coverage; however, with authors so clearly committed to the principle of anti-discrimination, more by way of critical analysis could be wished for. And it is to be hoped that by the time the next edition appears either the authors, or an editor, will deal with the numerous minor errors which still mar its presentation.