Sandra Fredman

Scepticism under Scrutiny: Labour Law and Human Rights

Oxford University Press eBooks, Dec 20, 2001

Labour lawyers in the United Kingdom have been understandably sceptical of the role of the judici... more Labour lawyers in the United Kingdom have been understandably sceptical of the role of the judiciary in the field of labour law. This chapter asks whether it is possible to construct rights so as to further rather than undermine the aims of social democracy. It uses the insights of the sceptical approach to move through scepticism towards a possible reconstruction of human rights in a social democratic context. First, the foundations of the scepticism of the role of human rights in the labour law context are considered. Surprisingly, even the most sceptical of social democratic labour lawyers believe strongly in the value of the International Labour Organisation. The Human Rights Act 1998 has begun to construct a framework for constraining the judiciary, both in respect of codification of rights and by giving Parliament the prime responsibility for protecting human rights, both in the original process of legislation and in having the final word on the matter.

A Half-Forgotten Landmark: Enderby v Frenchay and the Continuing Challenges of Equal Pay Laws

Hart Publishing eBooks, 2022

No. 19-1392 Dobbs v Jackson Women's Health Organization: brief of European Law Professors as amici curiae in support of respondents

Equality: A New Generation?

Industrial Law Journal, Jun 1, 2001

The new millennium has brought with it a surge of new legal activity in combating discrimination.... more

Marginalising Equal Pay Laws

Industrial Law Journal, Sep 1, 2004

To what extent can equal pay law buttress workers against the downward slide of terms and conditi... more

Substantive equality: A conceptual framework

Discussion paper, Jul 31, 2015

The principle of equality in international human rights instruments is expressed in very general ... more The principle of equality in international human rights instruments is expressed in very general and open-textured terms. Thus, Article 2 of the Universal Declaration of Human Rights (UDHR) provides that every human being is entitled to all the rights and freedoms within the Declaration ‘without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’ (UN General Assembly 1948). Similarly the International Covenant on Civil and Political Rights (ICCPR) requires States to respect and ensure the rights in the Covenant ‘without distinction’ (UN General Assembly 1966a, article 2), while the International Covenant on Economic Social and Cultural Rights (ICESCR) requires State parties to guarantee that the rights enunciated in the Covenant will be exercised without discrimination of any kind on the grounds mentioned in the UDHR (UN General Assembly 1966b, article 2(2)). Both the ICCPR (article 3) and ICESCR (article 3) have specific provisions for the ‘equal right’ of women and men to the enjoyment of all rights in the respective Covenants. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) focuses specifically on women, stating that ‘discrimination against women’ shall mean ‘any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field’ (UN General Assembly 1979, article 1).

Judicial Review and Civil Servants: Contracts of Employment Declared to Exist

Public Law, 1991

Interpreting Human Rights Law

Comparative Human Rights Law

On the face of it, judges are tasked with applying the law, not making it. Yet human rights are f... more On the face of it, judges are tasked with applying the law, not making it. Yet human rights are framed in general terms, requiring judges to draw on external values to interpret. Some regard judicial interpretation as gaining legitimacy only when true to the original intention of the drafters; or the text’s natural meaning. Others regard the human rights instruments as necessarily responsive to changing times. This is the ‘living tree’ or purposive approach. This chapter explores different approaches to interpretation of human rights in a comparative context. Section II examines judges’ own values. Section III discusses originalism or the intention of the drafters; section IV considers the natural meaning of the text; while section V examines the ‘living tree’ or purposive approach. Section VI explores the notion of transformative constitutionalism. The final part draws on the ‘bounded deliberative democracy’ developed in earlier chapters to point to the way forward.

Tolerating the Intolerant: Religious Freedom, Complicity, and the Right to Equality

Oxford Journal of Law and Religion

and the Right to Equality '… the realization of the objective of tolerance would call for intoler... more

format_quoteComplicity claims in sexuality and gender rights, exemplified by 'cake cases', highlight conflicts between religious beliefs and LGBTQI equality.format_quote

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Capital Punishment

Comparative Human Rights Law, 2018

This chapter applies the cross-cutting themes in Chapters 1–5 to the highly contested issue of th... more This chapter applies the cross-cutting themes in Chapters 1–5 to the highly contested issue of the death penalty. It begins by considering the differences in constitutional texts, and particularly the ambiguity as to whether the death penalty is permitted. This requires judges to apply their interpretive theories. Original intent, natural meaning, and living tree approaches have all been relied on to achieve a mosaic of different and vehemently contested approaches. The chapter then considers how courts in different jurisdictions have addressed three main issues: whether a fair procedure can be found which justifies the death penalty; whether there are good penological justifications; and the role of substantive values, such as human dignity. The chapter highlights the ways in which courts approach the demarcation between judicial and legislative power; their use of comparative materials; and the increasing interconnectedness of the approach of different jurisdictions to the death p...

Substantive equality: A conceptual framework

The principle of equality in international human rights instruments is expressed in very general ... more The principle of equality in international human rights instruments is expressed in very general and open-textured terms. Thus, Article 2 of the Universal Declaration of Human Rights (UDHR) provides that every human being is entitled to all the rights and freedoms within the Declaration ‘without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’ (UN General Assembly 1948). Similarly the International Covenant on Civil and Political Rights (ICCPR) requires States to respect and ensure the rights in the Covenant ‘without distinction’ (UN General Assembly 1966a, article 2), while the International Covenant on Economic Social and Cultural Rights (ICESCR) requires State parties to guarantee that the rights enunciated in the Covenant will be exercised without discrimination of any kind on the grounds mentioned in the UDHR (UN General Assembly 1966b, article 2(2)). Both the ICCPR (a...

Positive rights and positive duties: Addressing intersectionality

Judicial Review and Civil Servants: Contracts of Employment Declared to Exist

Public Law, 1991

The Right to Education and Substantive Equality

Intersectionality and Human Rights Law, 2020

Summary/Résumé/Resumen

There is a strong commitment to equality between women and men in international human rights law.... more There is a strong commitment to equality between women and men in international human rights law. The various actors within the treaty system who are tasked with elaborating on the meaning of human rights in international law have given close attention to gender equality. This paper evaluates these elaborations against a conception of equality that is substantive. The achievement of substantive equality is understood here as having four dimensions: redressing disadvantage; countering stigma, prejudice, humiliation and violence; transforming social and institutional structures; and facilitating political participation and social inclusion. The paper shows that, although not articulated in this way, these dimensions are clearly visible in the application by the various interpretive bodies of the principles of equality to the enjoyment of treaty rights. At the same time, it shows that there are important ways in which these bodies could go further, both in articulating the goals of substantive equality and in applying them when assessing compliance by States with international obligations of equality.

After Kalanke and Marschall: Affirming Affirmative Action

The Cambridge Yearbook of European Legal Studies Volume 1, 1998

Is it legitimate to use discriminatory policies to achieve equality? As official support for reve... more Is it legitimate to use discriminatory policies to achieve equality? As official support for reverse discrimination or affirmative action policies becomes more common among member states of the European Union, so does the potential for legal challenge. Yet no clear answer has yet been given by the European Court of Justice. The controversial European Court of Justice decision in Kalanke, striking down an affirmative action policy, was followed only two years later by that in Marschall, which signalled a significant change in approach to affirmative action policies. This change of attitude is likely to be tested in a variety of different ways in the near future. The next affirmative action case, Badeck, is now awaiting the opinion of the Advocate General, and a Swedish case is waiting in the wings. Both these cases are likely to take the Court into far stormier waters than those already traversed in Kalanke and Marschall.

After <I>Kalanke</I> and <I>Marschall</I>: Affirming Affirmative Action

Cambridge yearbook of European legal studies, 2012

Is it legitimate to use discriminatory policies to achieve equality? As official support for reve... more Is it legitimate to use discriminatory policies to achieve equality? As official support for reverse discrimination or affirmative action policies becomes more common among member states of the European Union, so does the potential for legal challenge. Yet no clear answer has yet been given by the European Court of Justice. The controversial European Court of Justice decision in Kalanke, striking down an affirmative action policy, was followed only two years later by that in Marschall, which signalled a significant change in approach to affirmative action policies. This change of attitude is likely to be tested in a variety of different ways in the near future. The next affirmative action case, Badeck, is now awaiting the opinion of the Advocate General, and a Swedish case is waiting in the wings. Both these cases are likely to take the Court into far stormier waters than those already traversed in Kalanke and Marschall.

Equality: A New Generation?

Industrial Law Journal, 2001

The new millennium has brought with it a surge of new legal activity in combating discrimination.... more

Palliation or protection: How should the right to equality inform the government’s response to Covid-19?

International Journal of Discrimination and the Law, 2020

This article examines what role equality law can play in addressing the inequalities created and ... more This article examines what role equality law can play in addressing the inequalities created and exacerbated by the British government’s response to the Covid-19 pandemic. We argue that while there is great potential in existing legislation, there is a need for both policy-makers and courts to apply a more searching and nuanced understanding of the right to equality if this potential is to be realised. We begin by examining how the burdens of confronting this pandemic as a society fall more heavily on those already at the bottom end of the scale of inequality. We then ask whether and to what extent the current legal structures protecting the right to equality can be mobilised to redress such inequalities, paying particular attention to the Public Sector Equality Duty under the Equality Act 2010 and on the Human Rights Act 1998. Finally, we argue that, to fulfil the requirements of both these legal duties, the courts should subject policies and practices to close scrutiny under the f...

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International Regulation of Platform Labor: A Proposal for Action

Platform-mediated work is a source of livelihood for millions of workers worldwide. However, beca... more Platform-mediated work is a source of livelihood for millions of workers worldwide. However, because platforms typically classify workers as ‘independent contractors’, those workers are generally excluded from the scope of labor rights. This has a corrosive effect on working standards of platform workers, creating the need for an international regulatory framework to prevent a race to the bottom. To address this situation, the article proposes an outline for an International Labor Organization (ILO) Convention for the regulation of platform work going beyond the employee/independent contractor dichotomy. It identifies five core issues in the platform economy – low pay, poor working conditions, inaccessible and unreasonable contracts, unfair management, and a lack of representation – and demonstrates how existing ILO standards could be adapted to address these issues. The proposals are informed by the evidence collected by the Fairwork project through its participatory and multidisci...

format_quoteInternational labor standards for platform workers are essential to prevent exploitation and promote fair practices globally, given their unique work characteristics.format_quote

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