‘Not as Bad as…’ The Concept of Disadvantage in the Justification of Positive Action under UK Anti-Discrimination Law

Abstract

: An essential goal of anti-discrimination law is to break the connection between disadvantage and group membership. There should not be a predictable link between being a member of a group with a protected characteristic and being disadvantaged in society. Positive action is the ultimate tool to achieve this aim, however, its application in the UK has been scarce. In this paper, I argue that the relevant concept of disadvantage in discrimination claims is different from the one used to justify positive action. This distinction impacts on the proportionality test and allows clarification of the potentialities and limitations of positive action to redress inequality. This attempt stands from a theoretical point of view but also highlights the reasoning behind recent cases under UK and EU anti-discrimination law.