The Need for Substantive Equality to Protect Mothers and Fathers from Discrimination: An Examination of CJEU and ECtHR Jurisprudence

Although numerous measures have been introduced to tackle the discrimination which pregnant women and mothers experience in England and Wales, there has been a significant increase in the reported instances of pregnancy and maternity discrimination in the past 10 years (Women and Equalities Committee, 2016). Similarly, around the last decade, fathers in England and Wales have been unsuccessful in their claims to reframe the limited entitlements allocated to them, which do not support their active participation in childcare, as sex discrimination. Even though fathers experience discrimination to a lesser extent than mothers, the societal and legal adherence to the traditional “male breadwinner” model has perpetuated the stereotype that mothers are primarily responsible for childcare, and fathers are expected to be the financial breadwinner. My paper contends that the incorporation of a fully substantive equality approach under the Equality Act 2010 would effectively guide the courts in England and Wales to importantly identify that the roles of motherhood and fatherhood are interrelated in discrimination cases concerning fathers. Consequently, the application of a substantive equality lens would encourage the increased participation of fathers in childcare as a means to dismantle the stereotypes that largely cause the discrimination directed against mothers and fathers.