After Brexit, 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.
Summary
- From 2021 the UK will not be bound by EU law and will be entitled to amend the Equality Act as it wishes, subject to the UK-EU Trade Agreement agreed in December 2020 and to other limited constraints (below).
- The Equality Act is likely to continue for the foreseeable future but some changes may be made by Parliament, eg a cap on compensation. See below What is likely to happen to the Equality Act after Brexit?
Effect of UK-EU Trade Agreement
For discussion of this, see UK-EU Trade Agreement.
Limited constraints as from 2021
After the end of 2020 the UK Parliament is entitled to amend the Equality Act without regard to EU law, though as mentioned above there are some constraints in the UK-EU Trade Agreement. However:
- The UK remains legally obliged to comply with the UN Disability Convention (CRPD). However this is more ‘broad brush’ than the EU directive, and its enforcement mechanisms are weaker than EU law.
- Even after Brexit, the UK remains bound by the European Convention on Human Rights (ECHR). This Convention offers less clear protection than EU law, particularly as regards employment. However if major changes to the Equality Act in future weaken discrimination protection, there may be cases brought to the Convention’s court in Strasbourg, seeking to challenge these. The Government has said it has “no plans to withdraw from the ECHR” (para 18 Equality Analysis: EU (Withdrawal) Bill (pdf)), though the Conservatives may review this policy at some stage.
The position is different in Northern Ireland where the Equality Act does not apply. Apparently Northern Ireland disability discrimination law must indefinitely continue to comply with EU law, under the Northern Ireland Protocol.
What is likely to happen to the Equality Act after Brexit?
It is likely in practice that the Equality Act will continue for the foreseeable future, even after Brexit.
What about amendments, so far as not restricted (or discouraged) by the UK-EU Trade Agreement? Major changes to the basic principles seem unlikely, at least in the short term. However since Labour lost the 2010 election, there have been employment law reforms particularly in areas not covered by EU law, for example increasing the qualifying period for unfair dismissal from one to two years. If equality law no longer has to meet EU minimum standards, the government may well consider some changes to restrict Equality Act rights.
The government has talked of maintaining the highest standards of workers’ rights. However a blog by Darren Newman Workers’ Rights and the EU (rangeofreasonableresponses.com), October 2019, comments that he would be more reassured about the government’s commitment to workers’ rights if instead of vague comments about maintaining high standards, they were able to say something more specific, such as the Minister for Women and Equalities stating “I believe that there should be no cap on the amount of compensation that can be awarded in a discrimination case”.
Capping compensation?
One possible change would indeed be to limit the amount of compensation that can be awarded under the Equality Act. There is a statutory limit on compensation for unfair dismissal. Suggestions to do the same for discrimination claims have been blocked by the argument that it would breach EU law.
If a cap on Equality Act compensation is introduced, its effect would depend on the amount of the cap. A very small cap could mean the Act is deprived of any significant effect. More likely, a cap might be along the lines of that for unfair dismissal compensation awards. In broad terms, this is currently set at one year’s pay, subject to a maximum of £88,519 (for the year from April 2020). Most people have annual pay much lower than £88,519, so for most people the limit would be their own annual pay. This would mean a significant number of claimants no longer being compensated in full for the distress and financial loss they suffer due to unlawful discrimination. That applies particularly to claimants who have suffered more serious distress or long-term financial damage (eg long-term mental illness restricting their employment prospects), particularly lower-paid workers because the one year’s pay limit for them is lower. It would also deny full compensation to those in high paid roles such as the consultant physician who was deprived of her career in the Michalak case.
