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Brexit, EU law and disability discrimination under Equality Act 2010

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Last updated 4th February, 2024.

From 1st January 2021 the British parliament is entitled to amend the Equality Act without regard to EU law, though subject to the UK-EU Trade Agreement. From the start of 2024, the principle of supremacy of EU law has been abolished in the UK, but the relevant EU directive and cases on it continue to have important effects on the Equality Act (EqA).

Summary

  • From 1st January 2021 the British parliament is entitled to amend the Equality Act (EqA) without regard to EU law, though subject to the UK-EU Trade Agreement and other limited constraints. See separate pages UK-EU Trade Agreement and Ability to amend Equality Act after Brexit.
  • Up to at least the end of 2023, UK courts were still required normally (though not always) to interpret the EqA in line with the relevant EU directive and pre-2021 EU-related case law: below From 1st January 2021 to end of 2023.
  • From the start of 2024, the Retained EU Law Act 2023 abolished the principle of supremacy of EU law. However regulations have amended the EqA to expressly preserve some interpretative effects of EU law, including the wider meaning of “disability” in employment claims: below From 1st January 2024.
  • From a date yet to be determined, the Retained EU Law Act 2023 will make further changes, including allowing lower courts like employment tribunals to refer directly to higher courts the question of whether they should follow pre-2021 EU-related case law: below From 1st January 2024.
  • Disability discrimination law in Northern Ireland (separate page) must continue to comply with EU directives even after 1st January 2021.
  • Brexit does not affect the European Convention of Human Rights, and the Human Rights Act.

From 1st January 2024

From 1st January 2024, the Retained EU Law Act 2023 abolished the principle of supremacy of EU law (so far as it remained). However regulations have amended the Equality Act 2010 (EqA) to expressly preserve the wider meaning of “disability” in employment claims, and the ability of people without a protected characteristic to claim indirect discrimination. Where EU-consistent interpretations of the EqA have not been expressly preserved, the position is less clear. See Brexit: Effect of EU law when interpreting Equality Act, from 2024.

From a date yet to be determined, the Retained EU Law Act 2023 will somewhat relax the rules for when higher courts can depart from EU court decisions and – more importantly for the EqA – will allow lower courts like employment tribunals to refer directly to higher courts the question of whether they should follow pre-2021 EU-related case law. See Retained EU Law Act 2023>Effect of REUL Act: Easier for UK higher courts to override EU cases.

From 1st January 2021 to end of 2023

The EqA continues after Brexit. From 1st January 2021 to at least the end of 2023, the position was that UK courts should normally (though not always) continue to interpret the EqA in line with the relevant EU directive and EU-related court decisions made before the end of 2020. See Archive: Effect of EU law when interpreting Equality Act, 2021 to 2023.

Also, from 1st January 2021, the British parliament is entitled to amend the Equality Act without regard to EU law, though subject to the UK-EU Trade Agreement and other limited constraints. See Ability to amend Equality Act after Brexit.

Up to 31st December 2020 – EU law continued

UK membership of the EU ended at 11pm on 31st January 2020. However under the terms of the Withdrawal Agreement (below) the UK remained largely bound by EU law during the “implementation period” which lasted until 31st December 2020.

Accordingly, until the end of 2020, the UK remained bound by the EU Framework Employment Directive, including as regards disability discrimination. Also (by virtue of UK legislation) UK courts and tribunals remained bound by decisions of the EU Court of Justice, and had to continue to interpret the Equality Act in the light of the directive and EU Court decisions, as discussed on this website.

Framework Employment Directive

This is the key European directive obliging member states to enact anti-discrimination legislation for disabled people. The directive covers employment and related areas. The UK had to amend its disability discrimination rules to comply with the directive.

The directive was also of ongoing importance in its effect on how British courts interpreted and applied the Disability Discrimination Act 1995 and then the EqA. Cases on the directive, if not the directive itself, seem likely to still be important in 2024 and beyond, though the position is now less certain.

More Framework Employment Directive.

Brexit: UK-EU agreements, and UK legislation

UK-EU agreements and implementation period

UK membership of the European Union ended on 31st January 2020. The Withdrawal Agreement agreed between the UK and EU in late 2019 provided for an implementation period from 31st January 2020 until 11pm on 31st December 2020. During this implementation period, the UK remained bound by almost all EU law.

Also during this implementation period, the EU and UK negotiated a Trade and Cooperation Agreement on their long-term relationship, which took effect from the start of 2021.

As well as providing for the implementation period, the Withdrawal Agreement also covers financial settlement, citizens rights, and Northern Ireland which must continue to comply with EU discrimination directives, even after 2020. This last point is stipulated by the Withdrawal Agreement in its ‘Northern Ireland Protocol’.

Links:

UK legislation

The main UK legislation implementing the UK’s exit from the EU is the EU (Withdrawal) Act 2018 (legislation.gov.uk), which was amended by the EU (Withdrawal Agreement) Act 2020, and – largely from 1st January 2024 – by the Retained EU Law (Revocation and Reform) Act 2023 (legislation.gov.uk).

The EU (Future Relationship) Act 2020 was passed at the end of December 2020. I discuss that briefly in the context of the UK-EU Trade Agreement>Effect on UK court decisions?

Under the EU (Withdrawal) Act 2018 as amended:

  • “IP completion day” was 11pm on 31st December 2020 (s.39(1)-(5) EU (Withdrawal Agreement) Act 2020, applied to the 2018 Act by s.1A(6)).
  • “exit day” was 11pm on 31st January 2020, when the UK ceased to be a member of the EU. “Exit day is defined by s.20(1) EU (Withdrawal) Act 2018, most recently amended by SI 2019/1423 after several agreed extensions of membership.

European Convention on Human Rights

The European Convention on Human Rights in the UK is not affected by Brexit. The UK remains a party to the Convention, and the Human Rights Act 1988 remains in place.

Further links

On Brexit, as well as the links above:

On the EU and EU law, see the Europe section of my general links page.

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