Legal skills foundation/english legal system - Essay Example

In the British legal tradition, it is the duty of courts to interpret the plain meaning of definite, black letter statutory language. Little room exists to go beyond the text by interpreting statutes in light of their purpose or effects, for to do so would be to risk judicial lawmaking rather than mere interpretation of the dicta of the sovereign parliament (Bridge1981). In Jones v Tower Boot Co Ltd (1996) IRLR 168 and Burton and Rhule v De Vere Hotels (1996) IRLR 596 the courts were required to decide whether victims of harassment were able to claim against their employers in circumstances where a literal interpretation of the law, applying common law principles, would not have revealed a cause of action.

The judges examined the statutory provisions regarding explicit liability and dug deep into the claim of 'unlawful discrimination' to extend the scope of direct liability for the actions of third parties and employees. They applied an unreserved approach widening the employer's responsibility for harassment and in the process all but separated harassment as a concept both from discrimination and from the influence of the common law. Such developments has been welcomed since the courts did not permit the wording of the legislation or case law on explicit liability to present a hurdle to victims seeking a remedy (CRE, 1996 and Monaghan & Javaid, 1997).

However a study of other cases involving harassment and discrimination shows that the courts are not always ready to apply the purposive approach to the legislation. The judgments in case such as Waters v Commissioner of Police of the Metropolis (1997) IRLR 589 illustrates a more restrictive approach which does not measure up to Tower Boot and Burton. This raises the question whether the extension of liability for harassment arises from a legitimate interpretation of the statutory provisions or whether policy considerations have led to adverse interpretative acrobatics, which are proving difficult to transport to other cases.

It is asserted that consistency is of supreme value in the area of equal opportunities; otherwise the purpose of the legislation is defeated in its application. To achieve this there must be separate and comprehensive legislation dealing with harassment and all new provisions concerning discrimination must be appropriately drafted to acknowledge the existence of new modes of interpretation. Harassment & DiscriminationSexual or racial harassment have no separate legal home and have been dependent upon a civil action in the form of direct discrimination.

The Sex Discrimination Act 1975 (SDA) and the Race Relations Act 1976 (RRA) have provided rules designed to meet the particular targets of national social policy. Section 1 of the RRA and SDA both define the direct form of discrimination as 'less favorable treatment' on the grounds, respectively, of race and sex. A comparison is to be made with people not of the complainant'sracial group or sex who are in circumstances which are the same, or not materially different, from those of the claimant (RRA s.3 (4) and SDA s.5 (3)). Discrimination becomes illegal within employment in the circumstances given in RRA s.

4 and SDA s.6. 3 These Acts became effective when the UK was already a member of the European