The Sex Discrimination Act 1986: Equality or Employment Deregulation?

Abstract

The Sex Discrimination Act 1986 amends the 1975 Act of the same title. Two recent decisions of the European Court of Justice have shaped this Act. Both these decisions concerned the E.E.C. Equal Treatment Directive' which prohibits direct or indirect discrimination in selection, promotion, vocational training and working conditions. In the first decision,² the E.C.J, held that the exceptions contained in the 1975 Act concerning private households and small employers were too general and infringed the Directive. The absence in the 1975 Act of provisions covering collective agreements or rules or undertakings/ professions was also held to be unjustified. This decision required the government to legislate to remedy the defects of the national legislation and led to the introduction of the Sex Discrimination Bill. During the passage of this Bill the E.C.J, delivered its “bombshell decision” in Marshall v. Southampton and S.W. Hampshire A.H.A ³ This decided that it was contrary to the Directive for an employer to dismiss a woman on the basis that she had reached state pensionable age, where that age was different for men and women. The Bill was duly amended to give effect to this decision. However the Government did acknowledge that in framing the legislation, it was influenced by a second objective. Thus, Lord Young contended that the Act eliminated unreasonable sex discrimination in a manner consistent with the Government's aim of minimising the imposition of “inappropriate” legislative burdens which might “impede economic efficiency and competitiveness.”