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Brexit, EU law and disability discrimination under Equality Act 2010

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This page does not apply outside Great Britain.
Last updated 4th February, 2024 (part update 5th October, 2024).

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. From the start of 2024, the principle of supremacy of EU law has been abolished in the UK, but pre-2021 EU law and cases continue to have important effects on the 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.
  • For claims arising from the start of 2024, the Retained EU Law Act 2023 (REUL Act) 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.
  • A further provision of the REUL Act was to come into force on 1st October 2024, but the Labour government has frozen it. If and when brought into force, this would make it somewhat easier for higher courts to depart from pre-2021 EU case law, and enable lower courts to refer cases to higher courts to ask whether they should depart from it. Below From 1st January 2024.
  • Disability discrimination law in Northern Ireland (separate page) must continue to comply with EU discrimination directives, and probably EU court decisions on them, even after 1st January 2021.
  • Brexit does not affect the European Convention of Human Rights, and the Human Rights Act.

From 1st January 2024

For claims arising from 1st January 2024, the Retained EU Law Act 2023 (REUL Act) has 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 who suffer the same disadvantage 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.

If and when brought into force, s.6 REUL Act would make it somewhat easier for higher courts to depart from pre-2021 EU case law, and enable lower courts to refer cases to higher courts to ask whether they should depart from it. S.6 was to come into force on 1st October 2024 but the Labour government has frozen that: Retained EU Law Act 2023>S.6 no longer takes effect in October 2024.

From 1st January 2021 to end of 2023

The EqA continues after Brexit. For claims arising from 1st January 2021 to the end of 2023, the supremacy of EU law continued. However, for higher court decisions made now (2024 and after) in respect of claims which arose at any time, the higher court can potentially depart from pre-2021 EU court decisions under s.6 EU (Withdrawal) Act. From 1st October 2024 (eg where permission to appeal is given on or after that date) the amended s.6 test making it somewhat easier to do so (above) may apply. See too 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 EqA 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

The UK ceased to be a member of the EU at 11pm on 31st January 2020. The UK legislation which previously made EU law binding in the UK under UK law was the European Communities Act 1972 (ECA). The ECA was repealed by s.1 EU (Withdrawal) Act 2018, from 31st January 2020.

However, under the terms of the Withdrawal Agreement (below) between the UK and the EU, the UK agreed to remain largely bound by EU law during an “implementation period”, which lasted a further 11 months until 31st December 2020. To give effect to this, s.1A EU (Withdrawal) Act 2018 stipulated that despite the repeal of the ECA, the ECA continued to have effect in UK law after January 2020 subject to specified adaptations. These provisions of s.1A giving the ECA continuing effect were repealed on 31st December 2020 (s.1A(5) EU (Withdrawal) Act 2018).

Accordingly, until the end of 2020, the UK remained bound by the EU Framework Employment Directive, including as regards disability discrimination. This was first as a member of the EU (until 31/1/20), and then under the Withdrawal Agreement (until 31/12/20), in both cases as implemented by the relevant UK legislation.

It may be, however, that decisions by British higher courts made after the end of the implementation period (ie after 2020) can depart from pre-2021 EU court decisions under s.6 EU (Withdrawal) Act, if the higher court so decides: Lipton v BA Cityflier, Supreme Court, 2024.

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 in some areas 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 (above Up to 31st December 2020).

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”, since renamed the “Windsor Framework” after amendments to it.

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.

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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