CAUSATION IN DISCRIMINATION LAW: THE TORTIOUS “BUT-FOR” TEST

Abstract

Discrimination law is notoriously difficult to categorise. Depending on the context, discrimination law can be classified as human rights law, constitutional law or labour law. Notably, though, the UK Supreme Court has drawn significantly on the language of torts in its discrimination decisions. One prominent example is its use of the “but-for” test to determine the causative element of direct discrimination. This article explores the implications of relying on these tortious principles in discrimination jurisprudence. We argue that while the court’s use of the “but-for” test has been useful to claimants by removing the need for malice or intention to prove discrimination, it conflates factual causation with legal causation and misunderstands the analysis required to determine causation in a direct discrimination claim. As a result, the “but-for” test weakens the coherency of discrimination law, ignores its unique conceptual challenges and muddies its factual and normative inquiries.