Reflexive Governance in EU Equality Law

The Covid pandemic has revealed how far we, as a European society, still are from the proclaimed Union of Equality. This book explores how the promise of equal treatment can become a reality and compliance with the EU acquis relating to equality and non-discrimination be improved. It studies enforcement and promotion aspects of the two watershed Directives of 2000, the Racial Equality Directive 2000/43/EC and the Employment Equality Directive 2000/78/EC, through the lens of reflexive governance. This governance approach is proposed as having a great potential in enhancing the likelihood of sustainability (or continuation) of reforms in the current candidate countries and EU Member States through its emphasis on reflexive learning processes and the cooperation between EU institutions, national authorities, and civil society actors. In order to deploy this potential, there is, however, a need for more consistent and transparent monitoring, both with regard to candidate countries as well as old and new Member States, and a reconsideration of the understanding of monitoring as such. It should be seen as helping to deconstruct own-preference formations and as an opportunity to learn from successes and failures in a cooperative and recursive process. To work on these lacunae and improve learning and monitoring processes, this book identifies indicators that are deduced from the comparative review of the implementation practice of the Member States. It is thus a contribution to the existing literature in the fields of Europeanization, governance studies, and the right to equality and non-discrimination.

The Limits of Arbitration Law in Addressing Cultural Diversity: The Example of Ismaili Arbitration in the United Kingdom

This article studies religious arbitration from the perspective of global legal pluralism, which embraces both normative plurality and cultural diversity. In this context, the article considers that UK arbitration law regulates both commercial and religious arbitration while relying on a monist conception of arbitration. It further identifies two intertwined issues regarding cultural diversity, which find their source in this monist conception. Firstly, through the study of Jivraj v. Hashwani ([2011] UKSC 40), this article shows that the governance of religious arbitration may generate a conflict between arbitration law and equality law, the avoidance of which can require sacrificing the objectives of one or the other branch of law. The Jivraj case concerned an Ismaili arbitration clause, requiring that all arbitrators be Ismaili—a clause valid under arbitration law but potentially not under employment-equality law. To avoid such conflict, the Supreme Court reduced the scope of employment-equality law, thereby excluding self-employed persons. Secondly, based on cultural studies of law, this article shows that the conception of arbitration underlying UK arbitration law is ill-suited to make sense of Ismaili arbitration. In view of these two issues, this article argues that UK arbitration law acknowledges normative multiplicity but fails to embrace the cultural diversity entangled therewith.

Is More Mittelstand the Answer? Firm Size and the Crisis of Democratic Capitalism

Corporate concentration is currently being discussed as a core reason for the crisis of democratic capitalism. It is seen as a prime mover for wage stagnation and alienation, economic inequalities and discontent with democracy. A tacit coalition of progressive anti-monopoly critiques and small business promoters considers more deconcentrated corporate structures to be a panacea for the crisis of democratic capitalism, arguing that small firms in competition are better for employment, equality and democracy. This paper offers a brief outline of ideas of the anti-monopoly and small business ideal and critically evaluates whether a more deconcentrated economy may live up to these promises. While we agree that the plea for strengthened antitrust enforcement contains relevant and promising prospects for reform, our analysis concludes on a decidedly critical note. In particular, we caution against romanticized notions of the small capitalist firm.

Evaluating the environmental sustainability strategies of the housekeeping department: the case of an international hotel chain in Hong Kong

Purpose The purpose of this paper is to use the case of an international luxury hotel chain in Hong Kong to present the general environmentally-friendly practices in housekeeping. Six in-depth interviews were conducted with the housekeeping department staff to evaluate the effectiveness of the Hotel’s environmental sustainability practices by analysing their benefits and limitations. Results reveal that all informants acknowledged the environmental sustainability strategies adopted by the Hotel, which can benefit stakeholders. Despite multiple green practices in hotel housekeeping, several strategies may not be as significant as expected with misaligned expectations from the management and the actual practices may create excessive workload for frontline room attendants with a lack of policy enforcement and supportive policies. Therefore, hotels should keep a mutual communication between the management and frontline employees prior to conducting environmentally- and employee-friendly practices. Given the labour-intensive nature of the hotel industry, the housekeeping department should ensure employment equality policy is in place with adequate environmentally friendly support for employees.

10. Introduction to Employment Equality Law

This chapter examines the pros and cons of interfering in the labour market via the promulgation of anti-discrimination laws. It evaluates the basic theoretical constructs which are relevant to a proper understanding of anti-discrimination law in the UK and the EU, including the possible policy responses (e.g. the distinction between formal equality and substantive equality). It briefly assesses the historical development of anti-discrimination laws in the workplace, and then analyses key statutory concepts such as direct discrimination, indirect discrimination, harassment, and sexual harassment. Finally, the chapter considers victimization—an important issue since there is little purpose in statutory concepts if the employer can intimidate the employee, thus preventing him/her from bringing or continuing proceedings on one of these bases and/or by subjecting him/her to retaliation.

The Unorthodox Relationship between the EU Charter of Fundamental Rights, the UN Convention on the Rights of Persons with Disabilities and Secondary Rights in the Court of Justice Case Law on Disability Discrimination

Court of Justice – Discrimination on the basis of disability – Article 21 and 26 of the Charter of Fundamental Rights – UN Convention on the Rights of Persons with Disabilities – Employment Equality Directive – Relationship between different sources of law protecting the right of persons with disabilities – Charter as interpretative aid – Charter as a parameter of validity – Scope of application of the Charter – Constitutionalisation of the UN Convention

Freedom of Religious Association: Towards a Purposive Interpretation of the Employment Equality Exceptions

The exceptions to the principle of equality in employment for employers in Britain with a religious or belief ethos (or who employ personnel for the purposes of organised religion) are ambiguous in scope and lack any clear foundational principle to guide judicial interpretation. In view of the consequent risk of inconsistency in decision-making, this article addresses the question of how best to understand and interpret the exceptions. While the exceptions should be regarded as limited derogations from the equality principle, it is nonetheless important that recognition is afforded to their underlying rationale which, I argue, derives from the fundamental human rights of religious association. Though the concept of associative rights and related ideas have not featured heavily in appellate judgments on the exceptions to date, I argue that such a purposive approach to interpretation of the exceptions could assist the judiciary to reach fair, balanced and consistent decisions in this highly contested area of the law by inviting consideration of the relationships among an employer’s ethos, its employees and the religious group it serves, and by encouraging engagement with the discriminatory impacts which an exercise of these rights may entail.